This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellant, 8

v. NO. 27,947 9 MARTIN B. GRIER, 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 12 James Waylon Counts, District Judge 13 Gary K. King, Attorney General 14 Andrew S. Montgomery, Assistant Attorney General 15 Santa Fe, NM 16 for Appellant 17 Hugh W. Dangler, Chief Public Defender 18 Nancy M. Hewitt, Assist ant Appellate Defender 19 Santa Fe, NM 20 for Appellee 21 MEMORANDUM OPINION 22 GARCIA, Judge. 23 Defendant Martin Grier was the subject of multiple indictments for the same 24 alleged offenses. The firs t set of grand jury indictments was quashed upon the 252 Defendant’s successful motion to quash in district court. Se veral months later, 1 Defendant was reindicted on new evidence th at was considered sufficient to proceed 2 to trial. At the beginning of trial, the di strict court dismissed all the charges on speedy 3 trial grounds. The State appeals the dismi ssal of Defendant’s charges on speedy trial 4 grounds. We determine that Defendant’s speedy trial rights were not violated and 5

reverse. 6 FACTS AND PROCEDURAL HISTORY 7 On October 4, 2004, Defe ndant was indicted by the grand jury and was 8 arraigned on October 8, 2004. An amended grand jury indi ctment was later issued on 9 May 25, 2005, which was then modified by a superseding grand jury indictment 10 issued September 23, 2005. The superseding grand jury indictment charged 11 Defendant with one count of criminal sexual penetration (Child 13 to 18), NMSA 12 1978, § 30-09-11(D)(1) (2009); three counts of criminal sexual contact of a minor 13 (Child 13 to 18), NMSA 1978, § 30-09-13(B )(2)(a) (2003); one co unt of attempted 14 criminal sexual contact of a minor (C hild 13 to 18), § 30-09-13(B)(2)(a); NMSA 15 1978, § 30-28-1 (1963); one count of bribery of a witness, NMSA 1978, § 30-24-3(C) 16 (1997); five counts of distribution of a controlled substance to a minor, NMSA 1978, 17 § 30-31-21(A)(1) (1997); and two counts of c ontributing to a delinquency of a minor, 18 NMSA 1978, § 30-6-3 (1990). 193 On December 15, 2005, Defendant filed a motion to dismiss with prejudice, or 1 in the alternative, a motion to quash th e grand jury indictment. The State opposed 2 these motions and urged the court to move forward with the trial scheduled to begin 3 in April 2006. Defendant claimed that the State had violated hi s federal and state 4 constitutional rights. Defendant asserted that the prosecution “continually 5 overstepped [its] role as an aid to the [g]rand [j]ury” by refusing to allow him to 6 present exculpatory evidence to the grand jury in the form of supporting eyewitness 7 testimony and by refusing to allow him to pres ent his own version of the events to the 8 grand jury. Additionally, Defendant ar gued that the 2003 amendment to NMSA 1978, 9 Section 31-6-11(A) (2003), added a requirementthat all evidence presented to a grand 10 jury be “lawful, competent and relevant.” Defendant claimed that the State’s only 11 evidence of any crime presented to the gr and jury consisted entirely of hearsay 12 testimony and that such testimony was not competent pursuant to Section 31-6-11(A). 13 The State had only provided the grand ju ry with the testimony of one witness, 14 Sergeant Robert Shepard, w ho had investigated the case but was not an eyewitness. 15 Neither the victims nor other materialwitnesses were called to testify. 16 The district court agreed with Defe ndant and on March, 14, 2006, issued an 17 order quashing the grand jury indictment. The court found that Section 31-6-11(A) 18 required the prosecution to provide “[l]aw ful, competent and relevant” evidence 194 during a grand jury proceeding and that th e exclusive use of hearsay testimony was 1 not competent evidence. The court concluded that the “grand jury may not find an 2 indictment on pure hearsay” and quashed the indictment issued on September 23, 3 2005. 4 On May 16, 2006, two months after the fi rst indictment was quashed, a separate 5 grand jury issued a new indictment charging Defendant with crimes identical to those 6 brought in the first proceeding. Additional new evidence was presented to the grand 7 jury to support the second indictment. Defendant at that point had moved to 8 Colorado, married, and begun a new job. When the case came to trial on May 8, 2007, 9 Defendant claimed a violation of his right toa speedy trial. The district court found 10 that the total length of delay in the case had been two years and seven months. The 11 court calculated this time period to include the first proceeding where Defendant had 12 originally been indicted on October 4, 2004. Having calculated this delay to exceed 13 the twelve-month threshold in a case of intermediate complexity, the district court 14 then proceeded to analyze th e delay pursuant to the four Barker factors. The court 15 found that these factors weighed in favor of Defendant. The court ultimately held that 16 the State did not overcome the presumption of prejudice found to exist pursuant to 17 Barker . The charges were then dismissed with prejudice for violating Defendant’s 18 right to a speedy trial. The State appeals this ruling by the district court. 195 DISCUSSION 1 In analyzing whether Defendant’s right to a speedy trial has been violated, we 2 review the particular facts and circumstances of the case in order to determine whether 3 an “actual and articulable deprivation” of Defendant’s Sixth Amendment right to a 4 speedy trial existed. State v. Garza , 2009-NMSC-038, ¶¶ 11-12, 146 N.M. 499, 212 5 P.3d 387. We apply the f our-part balancing test for evaluating speedy trial claims 6 established in Barker v. Wingo , 407 U.S. 514, 530 (1972). State v. Valencia , 7 2010-NMCA-005, ¶ 11, 147 N.M. 432, 224 P.3d 659 (filed 2009), cert. denied , 2009- 8 NMCERT-012, 147 N.M. 600, 227 P. 3d 90. These four factors consist of the length 9 of delay, the reasons for delay, the defendant’s assertion of his right, and the prejudice 10 to the defendant. Id. “In considering each of these factors, we defer to the [district] 11 court’s factual findings but review de novo the question of whether [the d]efendant’s 12 constitutional right was violated.” State v. O’Neal , 2009-NMCA-020, ¶ 14, 145 N.M. 13 604, 203 P.3d 135 (filed 2008) (internal quotation marks and citation omitted); see 14 Garza , 2009-NMSC-038, ¶ 11 (stating that the “substance of the speedy trial right is 15 defined only through an analysis of the peculiar facts and circumstances of each 16 case”). 17 Speedy Trial Rights Were Not Violated 18 This Court has recognized that the Sixth Amendment right to a speedy trial “is 196 designed to minimize the possibility of lengthy incarceration prior to trial, to reduce 1 the lesser, but nevertheless s ubstantial, impairment of liberty imposed on an accused 2 while released on bail, and to shorten the disruption of life cau sed by arrest and the 3 presence of unresolved criminal charges.” State v. Hill , 2005-NMCA-143, ¶ 11, 138 4 N.M. 693, 125 P.3d 1175 (internal quotation marks and citation omitted). When 5 claiming a denial of the Sixth Amendment right to a speedy trial, the initial burden 6 rests on Defendant to show that the thres hold length of delay has been met, thereby 7 triggering a “presumptively prejudicial” period of delay. Garza , 2009-NMSC-038, 8 ¶ 21. Once this presumptively prejudicial trigger has been satisfied, a full analysis of 9 the four Barker factors is then required. Id. If this threshold presumption is not met 10 by Defendant, the inquiry stops, and the districtcourt is not required to further analyze 11 the individual circumstances of the case by reviewing the four Barker factors. See 12 Garza , 2009-NMSC-038, ¶¶ 21-23. 13 The right to a speedy trial attaches when a defendant becomes the “accused” 14 through “indictment, or the actual restrain ts of arrest and holding for charges.” 15 Salandre v. State , 111 N.M. 422, 426, 806 P.2d 562, 566 (1991) (emphasis omitted). 16 “[A] determination of whether delay is presumptively prejudicial requires 17 consideration of (at least) the length of time between arrest or indictment and 18 prosecution, the complexity of the charges, and the natureof the evidence against the 197 accused.” Id. The district court found the cu rrent case to be of intermediate 1 complexity, and this fact is not disputed by the parties. Because this case was heard 2 in May 2007, prior to the August 2007 amendment to Rule 5-604 NMRA, the new 3 fifteen-month threshold set forth in Garzadoes not apply. Garza, 2009-NMSC-038, 4 ¶ 48. We must apply the previous threshold set forth inCoffin

. See State v. Coffin , 5 1999-NMSC-038, ¶ 56, 128 N.M . 192, 991 P.2d 477 (concluding that a twelve-month 6 delay is necessary to trigger a speedy trial inquiry in a case of intermediate 7 complexity). “As an initial matter, the length of the delay must cross [] the threshold 8 dividing ordinary from presumptively prejudi cial delay in order to trigger further 9 inquiry.” Id. ¶ 55 (alteration in original) (internal quotation marks and citations 10 omitted). 11 The core issue in this case is the determination of the initial event for 12 calculating when Defendant’s speedy trial ri ghts started to run in the second indicted 13 case. The district court determined that th e time of delay began to run at the filing of 14 the first indictment on October 4, 2004, and continued until the sc heduled trial on May 15 8, 2007, for a total delay of two years and seven months . Based upon our analysis of 16 the facts and authorities, we determine that this calculation by the district court was 17 incorrect. The quashing of the September 23, 2005, grand jury indictment based upon 18 insufficient evidence terminatedDefendant’s status as anaccused and eliminated any 198 impairment of his liberty interest regardi ng the charges made in the first indictment. 1 The State was required to submit competen t eyewitness testimony before the grand 2 jury in order to secure a new indictment. While this indictment did charge Defendant 3 with identical offenses as those stated inthe first case, this second indictment was 4 based on independent, non-hear say testimony of one of th e alleged victims—evidence 5 that was not used in the issuing of the first indictment. Cf. State v. Lucero , 108 N.M. 6 548, 550, 775 P.2d 750, 752 (Ct. App. 1989) (noting in a six-month rule case that if 7 a new complaint, though charging the sameoffenses, is “based on new facts or 8 evidence” presented by the state, then the previous indictment is superseded). As a 9 result, Defendant’s speedy trial rights began to run no sooner that May 16, 2006, when 10 Defendant was reindicted in the second proceeding. 11 In Hill , we held that the speedy trial calcu lation must begin anew when there 12 is a gap in time between a first and sec ond indictment of a defendant on identical 13 charges. 2005-NMCA-143, ¶¶ 1, 15. This speedy trial doctrine applies to the typical 14 situation where charges are dismissed but the defendant is later reindicted. See State 15 v. McCrary , 100 N.M. 671, 674-75, 675 P.2d 120, 123-24 (1984) (recognizing that a 16 dismissal and refiling to seek a first-degree charge was filed ingood faith and is not 17 scrutinized by the speedy-trial cl ause of the Sixth Amendment); State v. Jacquez , 119 18 N.M. 127, 130, 888 P.2d 1009, 1012 (Ct. App. 1994) (recognizing that the time during 199 which charges are dismissed should not beconsidered under a speedy trial analysis 1 where the defendant is free of restric tions on his liberty). The defendant inHill was 2 originally charged in 1989. 2005-NMCA-143, ¶ 1. The charges were dismissed for 3 lack of probable cause and were not re filed until thirteen years had passed. Id. ¶¶ 1, 4 4. We concluded that “like the period before indictmentand arrest, the right to a 5 speedy trial does not attach after ch arges are dismissed in good faith.” Id . ¶ 11. 6 “[W]hen charges are dismissed, any rest raint on liberty, disruption of employment, 7 strain on financial resources, and exposure to public obloquy, stre ss and anxiety is no 8 greater than it is upon anyone openly subj ect to a criminal investigation.” Id. (internal 9 quotation marks and citation omitted). As a conseque nce, “when charges are 10 dismissed, the speedy trial guarantee is no longer applicable.” Id. (internal quotation 11 marks and citation omitted). 12 In the present case, the district court qua shed the first indictment for insufficient 13 evidence, and Defendant was no longer an “accused” or subject to further restriction. 14 Unlike the dismissal in Hill , the quashing of the first i ndictment in the present case 15 was the result of Defendant’s good faith effo rt to require the State to establish 16 probable cause before the grand jury by submitting competent evidence that did not 17 rely solely upon the hearsay statements to Sergeant Shepard. The State did not seek 18 a dismissal and was forced to reindict Defe ndant if it desired to prosecute him for his 1910 alleged crimes. In addition, there was no gamesmanship or bad faith on the part of the 1 State in prosecuting the charges against Defendant. 2 Defendant attempts to distinguish the present case from Hill on the basis that 3 the first indictment was quashed pursuant to his motion to dismiss and not pursuant 4 to an independent State decision. This distinction is not persuasive and actually 5 supports the State’s position. The State objected to the dismissal of the first 6 indictment, supporting its position that the form and substance of the proceedings to 7 secure the second indictment were not the re sult of bad faith or ulterior motives on the 8 part of the State. There is no evidence that the State pursued the reindictment of 9 Defendant in order to circumvent any operative deadlines or avoid proceeding to trial 10 in an expeditious manner. Defendant al so cites several authorities involving abuses 11 of the six-month rule to buttress its argument. See State ex rel. Delgado v. Stanley , 12 83 N.M. 626, 627, 495 P.2d 1073, 1074 (1972); State v. Ware , 115 N.M. 339, 341-42, 13 850 P.2d 1042, 1044-45 (C t. App. 1993); Lucero , 108 N.M. at 550, 775 P.2d at 752; 14 State v. Ericksen , 94 N.M. 128, 130-31, 607 P.2d 666, 668-69 (Ct. App. 1980). The 15 analysis of a speedy trial violation is generally different from the analysis of a six16 month rule violation. See Jacquez , 119 N.M. at 129-30, 888 P.2d at 1011-12. But see 17 State v. Talamante , 2003-NMCA-135, ¶ 10, 134 N.M . 539, 80 P.3d 476 (recognizing 1811 a form over substance analysis in a speedy trial determination). 1 We are not persuaded by Defendant’s contention that the Talamantecourt’s 2 form over substance analysis is applicab le here. 2003-NMCA-135, ¶ 10 (noting that 3 “New Mexico courts look past the form to the substance when considering the effects 4 of a prosecutorial dismissal and refiling of criminal charges.”). Nine factors were 5 listed in Talamante to support the position that the state and district court treated the 6 two indictments as the same case. Id. ¶ 9. For example, we concluded that the error 7 at grand jury was procedural, involving def ective grand jury instructions and was not 8 a substantive error involving the sufficiency of the evidence. Id. ¶ 5. In Talamante , 9 there was a seamless continuation of the original charges through the two proceedings, 10 with the dismissal and refiling occurring on the same day. Id. ¶ 1. Moreover, the 11 second indictment was treated as a refili ng by the court, all conditions of release 12 remained in effect without further action, and the new case was assigned to the same 13 district judge. Id. This Court noted that “[t]he f act that the first indictment was 14 dismissed is of no consequence because th e second indictment was returned on the 15 same day charging the identical offenses set fo rth in the first indictment. . . . Here, the 16 charges against [the d]efendant were never dismissed or discharged in any real sense, 17 thus his speedy trial rights continued to apply.” Id. ¶ 8 (citations omitted). 1812 The facts in the present cas e do not resemble those in Talamante . In fact, of the 1 nine factors listed in Talamante , the only similarity with the present case is that the 2 same offenses were charged in both indi ctments. This single similarity is not 3 sufficient to distinguish the circumstances in this case from th e recognized authority 4 established in McCrary , Jacquez , and Hill . Defendant’s actions and testimony 5 confirm that he recognized the quashing of the first indictment absolved him of his 6 status as an accused and eliminated any restrictions upon his liberty that had 7 previously been imposed. Defendant admits that during the period of time between 8 the two proceedings he “moved out of state, obtained a well-paying job in the State 9 of Colorado, and got married, thinking that the case [was] over.” Just as the defendant 10 in Hill was no longer an accused after the 1989 charges against him were dropped, 11 Defendant ceased being an “accused” for the purposes of the Sixth Amendment when 12 the first indictment was quashed on March 14, 2006. 13 For the purposes of determining a leng th of delay in De fendant’s case, the 14 period begins on May 16, 2006, when the second grand jury indictment was issued 15 and Defendant became an “accused.” The period ends on the first day of trial which 16 was May 8, 2007. The length of delay in Defendant’s case was a total of eleven 17 months and twenty-two days . This period of delay does not reach the twelve-month 1813 threshold under Coffinthat would trigger further investigation into Defendant’s claim. 1 Since Defendant’s case does not meet the presumptively prejudicial length of delay, 2 we do not continue an analysis of the four Barker factors. There was no violation of 3 Defendant’s right to a speedy trial. 4 CONCLUSION 5 The length of the delay in this case is not presumptively prejudicial. Defendant 6 failed to establish sufficient circumstances torequire that the two separate and distinct 7 indictments be recognized as one continuous case for speedy trial purposes. We 8 conclude that Defendant’s c onstitutional right to a speedy trial was not violated. We 9 therefore reverse the ruling of the districtcourt and remand the case with instructions 10 to reinstate the charges against Defendant. 11 IT IS SO ORDERED. 12

__________________________________ 13 TIMOTHY L. GARCIA, Judge 14 WE CONCUR: 15

_______________________________ 16 RODERICK T. KENNEDY, Judge 1714 _______________________________ 1 LINDA M. VANZI, Judge 2