IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellant, 3

v. NO. 29,147 4 AMANDA WARREN, 5 Defendant-Appellee. 6 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 7 Michael T. Murphy, District Judge 8 Gary K. King, Attorney General 9 Ann M. Harvey, Assistant Attorney General 10 Santa Fe, NM 11 for Appellant 12 Mark L. Pickett 13 Las Cruces, NM 14 for Appellee 15

MEMORANDUM OPINION 16 KENNEDY, Judge. 17 The State argues the district court e rred in granting Defendant’s motion to 18 dismiss for speedy trial violation. We issu ed a calendar notice proposing to affirm the 19 district court on February 9, 2009. The State timely filed, after extension, a 20 memorandum in opposition on March 23, 2009. We remain unpersuaded by the 21 State’s arguments and affirm the district court’s dismissal. 222 In order to determine whether Defendant’s constitutional right to a speedy trial 1 was violated, we evaluate the following factor s: (1) the length of delay; (2) the reason 2 for the delay, (3) whether De fendant asserted his right to a speedy trial; and (4) the 3 prejudice to Defendant. See Zurla v. State , 109 N.M. 640, 642, 789 P.2d 588, 590 4 (1990) (applying the four-factor test set out in Barker v. Wingo , 407 U.S. 514, 530 5 (1972), to evaluate speedy trial issues). Wh en reviewing a district court’s decision on 6 a motion to dismiss for speedy trial grounds, wegive deference to the court’s factual 7 findings. State v. Urban , 2004-NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061. 8 Weighing and balancing the Barker factors is a legal determination that we review de 9

novo. Id. 10 A. Length of Delay 11 “Initially, we determine whether the delay is presumptively prejudicial. If it is 12 presumptively prejudicial, we balance the length of the delay against the remaining 13 three factors to assess whether the constitution has been violated.” State v. Laney , 14 2003-NMCA-144, ¶ 11, 134 N.M. 648, 81 P.3d 591. The length of the delay in this 15 case was a little over approximately ninemonths, from February 1, 2008 until 16 November 4, 2008. [MIO 2-3, 8] Neither the charges of aggravated DUI nor the 17 evidence appear to have been complex. See, e.g. , State v. Marquez, 2001-NMCA-062, 18 ¶ 12, 130 N.M. 651, 29 P.3d 1052 (reiterating DUI is generally considered a simple 193 case); State v. LeFebre , 2001-NMCA-009, ¶ 14, 130 N.M . 130, 19 P.3d 825 (noting 1 that a case involving multiple charges aris ing from a single episode of driving while 2 intoxicated was simple, for purpos es of speedy trial analysis). In simple cases, a delay 3 of nine months or more is presumptively prejudicial. Salandre v. State , 111 N.M. 422, 4 428, 806 P.2d 562, 568 (1991). 5 The State correctly notes passing the presumptively prejudicial point does not 6 necessarily mean the first factor of the Barker test will weigh against the State. [MIO 7 7] However, once the length of delay passes the presumptively prejudicial minimum, 8 the State has the burden of persuasion th at Defendant’s speedy trial right was not 9 violated. Zurla, 109 N.M. at 646, 789 P.2d at 594. The State has failed to meet that 10 burden. 11 Moreover, the State’s reliance on Coffin is misplaced. State v. Coffin, 1999- 12 NMSC-038, ¶ 59, 128 N.M. 192, 991 P.2d 477. [Id.] While we acknowledge the 13 Coffin court weighed a six-day de lay past the fifteen-month presumptively prejudicial 14 time-period “neutrally” against th e parties, this was because Coffin was an “inherently 15 complex” death penalty case. Id. The case at hand is not “inherently complex,” and 16 involves a shorter time period; a delay past ni ne months is therefore less justified. We 17 agree that this minimal delay past the presumptively prejudicial mark only tilts 18 slightly in favor of Defendant, but do not consider it neutral. 194 B. Reason for Delay 1 Turning to the second Barker factor, we must allocate the reasons for the delay 2 to each side and determine the wei ght attributable to each reason. See State v. Plouse , 3 2003-NMCA-048, ¶ 45, 133 N.M. 495, 64 P.3d 522. In this case, the district court 4 specifically found none of the delay attribut able to Defendant. [RP 96] We see no 5 reason to disturb that finding. 6 The State argues the time between A ugust 12, 2008, and November 4, 2008, 7 should be weighed as neutral or agains t Defendant because Defendant brought a 8 motion to dismiss. [MIO 8] It was th e State, however, who requested the trial be 9 moved to allow additional time for the State to respond. [DS 4] Moreover, the State 10 failed to request a trial date within the permissible time pe riod. While the State argues 11 it should not be held accountable for this failure because in its jurisdiction “the [c]ourt 12 has always set cases on its own without re quest from the State,” [DS 6] we have 13 repeatedly held it is primarily the responsib ility of the State to bring a case to trial 14 within a reasonable period of time. Marquez, 2001-NMCA-062, ¶ 8 (reiterating that 15 the state has an absolute constitutional res ponsibility to bring defendants to trial in a 16 timely manner) 17 We do not find the district court’s findings unreasonable under the 18 circumstances; the State does not appear to havebeen striving to bring this case to trial 195 and we decline to put thatresponsibility on Defendant. See Zurla , 109 N.M. at 643, 1 789 P.2d at 591 (observing that “bureaucratic i ndifference or failure to take reasonable 2 means to bring a case to trial” weighs agai nst the State). Moreover, more than two 3 months of the delay appears to be from the State’s decision to bring the case in 4 magistrate court rather than proceeding directly to district court and obtaining a trial 5 date. [RP 77; DS 2; MIO 1-2] We theref ore agree with the district court that this 6 factor weighs slightly against the State. 7 iii. Defendant’s Assertion of Speedy Trial 8 Though assertion of the right is not determinative, we give the adequacy and 9 timeliness of a defendant's assertion strong evidentiary weight. State v. Maddox, 10 2008-NMSC-062, ¶ 28, 145 N.M. 242, 195 P.3d 1254. Th e State asserts Defendant’s 11 assertions of speedy trial were perfunctory and therefore should not have weighed in 12 Defendant’s favor under the Barker analysis. [DS 8] While it is true that we have 13 held “pro forma motions are generally afforded relatively little weight in this 14 analysis,” Urban , 2004-NMSC-007, ¶ 16, in this cas e, Defendant asserted her right 15 to a speedy trial on multiple occasions, includi ng: a pretrial conference in magistrate 16 court, a waiver of arraignment in districtcourt, a motion to di smiss for violation of 17 six-month rule, and the filing of a motion to dismiss for speedy trial violations. [RP 18 63-66, 79-80, 83] Defendant also appears to have objected to an extension of time on 196 at least two occasions. [RP 79] We do not agree with th e State that these assertions 1 were simply perfunctory. [MIO 9] We hol d Defendant’s assertions of her right to 2 a speedy trial were sufficient to weigh at least slightly against the State under a Barker 3 analysis. 4 D. Prejudice to Defendant 5 The right to a speedy trial is intended to prevent or minimize three types of 6 prejudice: (1) an oppressive pretrial incarceration; (2) anxiety and concern of the 7 accused; and (3) the possibility of impairment to the defense. Zurla , 109 N.M. at 644, 8 789 P.2d at 592. The third factor is not at issue in this case, insofar as Defendant does 9 not appear to have articulated a specific basis for any claim that the defense was 10 impaired. 11 As to the first factor, Defendant was not incarcerated pending the trial. She was, 12 however, apparently subject to conditions of release which the district court found 13 prejudiced Defendant. [DS 6; RP 96] We have previouslyheld conditions of release 14 which limit movement and constitutional ri ghts may be considered when weighing 15 prejudice to the defendant. See, e.g. , Marquez, 2001-NMCA-062, ¶ 24. 16 The State argues the district court’s reliance on special conditions was 17 “erroneous,” and that the conditions were not “extraordinary.” [DS 6; MIO 10] The 18 existence of the special conditi ons of release is a factual matter; we defer to the district 197 court on factual matters. Urban , 2004-NMSC-007, ¶ 11. Moreover, the record proper 1 appears to validate the district court’s findi ng in that it suggests Defendant was at least 2 prohibited from: leaving the jurisdiction of the court, consuming any alcoholic 3 beverages or non-prescription drugs, drivi ng without a valid license, possessing any 4 firearms, entering any establishments that sells liquor, and leaving Doña Ana county 5 without permission. [See RP 37-39] 6 Defendant also apparently testified she had suffered stress and anxiety. [DS 18] 7 The extent of Defendant’s stress and anxiety is somewh at unclear from the docketing 8 statement, record proper, and memorandum in opposition. It appears Defendant 9 testified that, due to anxiety and looming trial dates, she lost her job of five years, lost 10 her best friend, and visited numerous counselors. We agree with the State that this 11 testimony, on its own, would likely be in sufficient to constitute undue prejudice. See 12 Plouse, 2003-NMCA-048, ¶ 53, (explaining that some anxiety and concern usually 13 result when a person awaits trial). But, coupled with the district court’s finding on 14 prejudice resulting from the conditions of re lease, we hold Defendant has sufficiently 15 demonstrated prejudice, so as to weigh slightly in her favor under a Barker analysis. 16 17 The above factors are balanced in the context of the policy that supports the 18 enforcement of the speedy trial right. Maddox, 2008-NMSC-062, ¶ 36. These four 198 factors have no “talismanic qualities” where one factor would constitute either a 1 necessary or sufficient condition to finding a deprivation of the right to a speedy trial. 2 Id. ; Zurla , 109 N.M. at 642, 789 P.2d at 590. In the case at hand, all of the factors 3 weigh at least slightly in Defendant’s favor . We therefore see no reason to disturb the 4 district court’s findings or dismissal. 5 Accordingly, we affirm the district court’s dismissal. 6 IT IS SO ORDERED. 7

___________________________________ 8 RODERICK T. KENNEDY, Judge 9 WE CONCUR : 10

___________________________ 11 JONATHAN B. SUTIN, Judge 12

___________________________ 13 LINDA M. VANZI, Judge 14