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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,697 9 LANCE PATRICK JOSEPH KELLY, 10 Defendant-Appellee. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Reed S. Sheppard, District Judge 13 Gary K. King, Attorney General 14 Ralph E. Trujillo, Assistant Attorney General 15 Albuquerque, NM 16 for Appellant 17 Chief Public Defender 18 Nancy Hewitt, Appellate Defender 19 Santa Fe, NM 20 for Appellee 21 MEMORANDUM OPINION 22 KENNEDY, Judge. 23 The State appeals from the district c ourt’s dismissal based on a violation of 242 Defendant’s constitutional speedy trial rights. Our notice proposed to affirm and the 1 State filed a timely memorandum in opposition pursuant to a granted motion for 2 extension of time. We remain unpersuade d by the State’s arguments and therefore 3 affirm. 4 Issues 5 The State’s issues relate tothe central contention that the district court erred in 6 dismissing the case based on speedy trial grounds . [DS 5-6] This Court applies the 7 four-factor balancing set forth in Barker v. Wingo , 407 U.S. 514, 530 (1972), to 8 determine whether a defendant's constitutional right to a speedy trial has been 9 violated. State v. Plouse , 2003-NMCA-048, ¶ 34, 133 N.M . 495, 64 P.3d 522. Under 10 the Barker test, we balance, in light of the f acts and circumstances of the particular 11 case, (1) the length of the delay, (2) the reas ons for the delay, (3) the assertion of the 12 right, and (4) the prejudice to the defendant. Id. 13 The first factor, the length of the de lay, involves a two-fold inquiry. State v. 14 Laney , 2003-NMCA-144, ¶ 11, 134 N.M. 648, 81 P.3d 591. We consider first 15 whether the length of the delay was presumptively prejudicial, and, if so, we then 16 balance the four Barker factors to assess whether the defendant's constitutional rights 17 have been violated. State v. Garza , 2009-NMSC-038, ¶ 23, 146 N.M. 499, 212 P.3d 18 387. We are deferential to th e district court’s fact finding, but independently examine 193 the record to determine whether a sp eedy trial violation has taken place. State v. 1 Tortolito , 1997-NMCA-128, ¶ 6, 124 N.M. 368, 950 P.2d 811. We analyze speedy 2 trial claims on a case-by-case basis, examini ng all four factors in order to weigh the 3 conduct of both the prosecutor and defense, with no one factor as dispositive. State 4 v. Urban , 2004-NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061. 5 Length of Delay and Assertion of the Speedy Trial Right 6 The State does not contest our analysis regarding the length of delay and 7 Defendant’s assertion of his right to a spee dy trial. [MIO 1-2] As addressed in our 8 notice, the twenty-five month delay exceed s the presumptively prejudicial fifteen9 month period by ten months, and the length of delay is weighed against the State. 10 Further, Defendant asserted his right to a speedy trial at least six times, which also 11 weighs this factor against the State. 12 Reasons for Delay 13 The State argues that “most of the delay in this case was justifiable and should 14 not be held against either party.” [MIO 3] We disagree and instead agree with the 15 district court’s conclusion that “the delay primarily rests with the State’s inability to 16 collect discovery and conduct w itness interviews.” [RP 256] As noted by the district 17 court [RP 256], twenty-one days before the initial July 13, 2009, trial date, the State 18 added five more witnesses to its amended witness list and was unable to conduct 194 interviews before the scheduled trial [RP 256], thereby requiring an extension. [RP 1 104, 111] Further, although Defendant did not oppose the State’s initial two requests 2 for continuances and resultant six monthsof delay, [RP 30, 52, 147, 170-71] the 3 record provides that the lack of opposition was because the State had failed to provide 4 needed discovery with regard to safe hous e videos and interviews of the State’s 5 witnesses. [RP 147, 153, 168, 171, 178, 227] See, e.g. , State v. Johnson , 6 2007-NMCA-107, ¶¶ 15, 25, 142 N.M. 377, 1 65 P.3d 1153 (holding that the delay 7 resulting from the state’s failure to make its witnesses available for pretrial interviews, 8 which in turn prevented the defendants from preparing for trial, was delay attributable 9 to the state and, thus, weighed against it for purposes of the speedy trial analysis). In 10 this regard, the State acknowledges that mu ch of the delay was caused by locating and 11 providing a 2001 safe house interview tape. [MIO 4] 12 The State argues, however, that the delay should not be counted against the 13 State because the 2001 safe house interview was not readily accessible to the Second 14 Judicial District from the Thirteenth Judicial District and because it was not relevant 15 to the case. [MIO 4] The State’s assessment of the value of th e safe house interview 16 to the defense is not a valid reason for any delay in providing the interview. And 17 while the State’s difficulty in accessing the records may not have been intentional or 18 to gain a strategic advantage, it is ne vertheless weighed against the State. See Garza , 195 2009-NMSC-038, ¶ 26 (providing that neg ligent delay weighs “less heavily but 1 nevertheless should be considered since the ultimate responsibility for such 2 circumstances must rest with the governmentrather than with the defendant.”). 3 Apart from any discovery delays, the State also argues that “[a]pproximately 4 the last nine months of delay should be held either against Defendant or should be 5 considered justifiable delay and not held agains t either party.” [MIO 3] In this regard, 6 the State argues that the judge’s unexp ected recusal on the day of the scheduled 7 January 25, 2010, trial [RP 140] which cause d an additional six-month delay at the 8 end of the twenty-five month period should not be held against the State. However, 9 unlikeState v. White , 118 N.M. 225, 226, 880 P.2d 322, 323, [MIO 5] where the delay 10 was caused by a judge’s surgery and recoverytime, the delay in this case was caused 11 by the judge’s unexpected recusal and the resultant time it took to replace the judge 12 and schedule another trial. [M IO 6] We view this as falling within the administrative 13 burdens on the criminal justice system, which is considered ne gligent delay and is 14 weighed against the State. See Garza , 2009-NMSC-038, ¶ 29 (providing that delay 15 attributable to the unavailability of a judge is negligent delay for which the state is 16 responsible). Moreover, ev en if the final few months of the delay were to 17 accommodate defense counsel [MIO 6; RP 201, 204, 211], this does not negate the 18 greater amount of delay that was attributable to the State. 196 In the end, although none of the delay in this case was the consequence of 1 intentional delay caused by the State, the case was nonetheless delayed ten months 2 beyond the presumptively prejudicial period for intermediate cases, predominantly 3 due to the State’s failure to complete discovery matters and to negligent and 4 administrative delay. Ultimately, it is the state’s burden to bring a defendant to trial. 5 See State v. LeFebre , 2001-NMCA-009, ¶ 9, 130 N.M. 130, 19 P.3d 825 (holding that 6 the state bears the primary responsibility for bringing cases to trial within a reasonable 7 time). We accordingly weigh the delay factor against the State. See Garza , 2009- 8 NMSC-038, ¶ 29 (providing that the weight counted against the state for a negligent 9 delay depends on the amount of time that has passed beyond the threshold required 10 to trigger the speedy trial inquiry). 11 Prejudice 12 As set forth in our notice, we consider three types of prejudice relevant to the 13 speedy trial analysis: (1) oppressive pretri al incarceration; (2) the accused’s anxiety 14 and concern; and (3) the possibility of an impairment to the defense. See Plouse , 15 2003-NMCA-048, ¶ 51, 133 N.M. 495, 64 P.3d 522. To support a finding of 16 prejudice, “the evidence [must show] a nexus between the undue delay in the case and 17 the prejudice claimed.” Salandre v. State , 111 N.M. 422, 431, 806 P.2d 562, 571 18 (1991), modified on other grounds by Garza , 2009-NMSC-038, ¶¶ 19-22. 197 In the present case, Defendant spent over two years in jail. [RP 259] Given 1 that ten of the twenty-five months exceeded the fifteen-month intermediate minimum, 2 we agree with the district court’s finding that the incarceration was oppressive. [RP 3 259] See State v. Moreno , 2010-NMCA-044, ¶ 37, 148 N.M. 253, 233 P.3d 782 4 (concluding that the defendant suffered some prejudice from being incarcerated 5 pending trial for almost two years); State v. Marquez , 2001-NMCA-062, ¶ 12, 130 6 N.M. 651, 29 P.3d 1052 (recognizing that the presumption that pretrial delay has 7 prejudiced the accused intensifies over time). 8 We further agree with the district court that Defendant’s defense was potentially 9 compromised as a result of the delay. [RP 260] See Garza , 2009-NMSC-038, ¶ 36 10 (recognizing that prejudice tothe defense is the most serious type of prejudice). 11 During the delay beyond the presumptively prejudicial period, a witness (Defendant’s 12 girlfriend) whose testimony Defendant intended to offer in support of his character 13 died. [RP 229] We do not consider it determinative that Defendant’s girlfriend was 14 on the State’s witness list, rather than on Defendant’s witness list. [MIO 7] Instead, 15 we consider that Defendant planned to call his girlfriend for purposes of presenting 16 the jury “with a compelling picture [of Defendant] as th e concerned and appropriate 17 parent he has been for his children and step children.” [RP 229] Because his 18 girlfriend died during the de lay, Defendant was unable to preserve her testimony. 198 [MIO 8] And because this case appears to have boiled down to a swearing match 1 between Defendant and Vic tim, [RP 151, 224] we conclude that the loss of this 2 potential witness was prejudicial to the defense because she was intended to bolster 3 Defendant’s credibility. 4 We acknowledge the State’s argument that the girlfriend’s testimony was 5 irrelevant because she never observed any interactions between Defendant and the 6 Victim [MIO 7] (who was the daughter of a woman with whom Defendant “was a 7 roomer” DS 3) and because Defendant’s interactions with children other than the 8 Victim did not reflect on his guilt or innocen ce with regard to Vi ctim. [MIO 8; RP 9 181] However, while Defendant may have been able to elicit testimony about his 10 treatment of children from his own children and step children [MIO 8] and while the 11 State questions the evidentiary weight of the evidence, it nonetheless was reasonable 12 for Defendant to assert that his girlfriend’s view of his interactions with children was 13 useful to his defense. See generally Rule 11-404(A)(1) NMRA (character of accused). 14 Last, while the girlfriend was deceased at the time the first judge considered and 15 denied Defendant’s previous January 8, 2010, motion to di smiss, [DS 5] it was within 16 the second judge’s prerogative as fact finder to determine that the loss of the witness 17 prejudiced Defendant, [RP 260-61] albeit perhaps only slightly. See State v. Marquez , 18 2001-NMCA-062, ¶ 12 (recognizing that the presumption that pretrial delay has 199 prejudiced the accused intensifies over time. 1 CONCLUSION 2 Having analyzed each of the Barker factors, we now balance them. Because all 3 of the Barker factors weigh against the State, including the prejudice factor, we 4 affirm. See Salandre , 111 N.M. at 425, 431, 806 P.2d at565, 571 (concluding that it 5 was a “close case” but that the defendant’s speedy trial rights were violated where the 6 prejudice was slight and the other three factors weighed in his favor “but not 7 heavily”). 8 IT IS SO ORDERED. 9

___________________________________ 10 RODERICK T. KENNEDY, Judge 11 WE CONCUR : 12

___________________________ 13 JAMES J. WECHSLER, Judge 14

___________________________ 15 TIMOTHY L. GARCIA, Judge 16