Affirmed.
Hector H. Balderas, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellant. Jorge A. Alvarado, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellee.
{1} Defendant Nodee Lujan was charged with two counts of criminal sexual contact of a minor in the fourth degree. See NMSA 1978, § 30–9–13(A), (D)(1) (2004). The State appeals the district court's order that dismissed Defendant's charges based upon a violation of Defendant's right to a speedy trial under the United States and New Mexico Constitutions. We affirm.
{17} A defendant's failure to demand a speedy trial does not “forever waive[ ] his right[ ]” because this right is “fundamental in nature.” Garza, 2009–NMSC–038, ¶¶ 31–32, 146 N.M. 499, 212 P.3d 387 (internal quotation marks and citation omitted). In determining the weight to assign to a defendant's assertion of his speedy trial right, we “assess the timing of the defendant's assertion and the manner in which the right was asserted.” Id. ¶ 32. We consider “whether a defendant was denied needed access to speedy trial over his objection or whether the issue was raised on appeal as [an] afterthought.” Id. The effect of a defendant's assertion of his speedy trial right may be mitigated where his actions resulted in delay. Id.
{18} The district court found that Defendant had not formally asserted his speedy trial right until he filed his motion to dismiss in July 2013. It weighed this factor slightly against the State, because it found that Defendant had not acquiesced to the delay. The State, citing a Fifth Circuit Court of Appeals case, argues that Defendant's filing of a motion to dismiss should be weighed “strongly” against Defendant because it was “an assertion of the remedy” and not an assertion of the right. See United States v. Frye, 489 F.3d 201, 210–12 (5th Cir.2007) (concluding that the assertion-of-the-right factor did not “weigh against the government” because the defendant's motions for dismissal amounted to an assertion of the remedy rather than an assertion of his speedy trial right and because the motions did not manifest a “desire to be tried promptly”). New Mexico courts, however, have concluded that a motion to dismiss based on speedy trial grounds is an assertion of the right that is weighed against the government, although it is generally not weighed heavily. See, e.g., Work v. State, 1990–NMSC–085, ¶ 7, 111 N.M. 145, 803 P.2d 234 (agreeing with the Court of Appeals that the defendant timely asserted his right to a speedy trial and “weigh[ing] this factor in his favor” where the defendant filed a speedy trial motion seven months after the indictment and five weeks before trial was scheduled to begin); State v. Johnson, 1991–NMCA–134, ¶ 5, 113 N.M. 192, 824 P.2d 332 (concluding that the 2 “[d]efendant asserted his right to a speedy trial by filing a motion to dismiss for delay” and that “[t]his factor ... weighed in favor of [the] defendant, but not heavily”).
{19} Here, Defendant asserted his speedy trial right by filing his motion to dismiss about nine months after the State refiled the charges against him and about five months before he was scheduled to go to trial. He filed his motion well before trial was set to begin, not “on appeal as [an] afterthought[,]” and he did not otherwise act in a manner that caused delay. See Garza, 2009–NMSC–038, ¶ 32, 146 N.M. 499, 212 P.3d 387. Therefore, we conclude that his motion amounted to an appropriate assertion of the right and the district court properly weighed the assertion factor slightly against the State. See Work, 1990–NMSC–085, ¶ 7, 111 N.M. 145, 803 P.2d 234; Johnson, 1991–NMCA–134, ¶ 5, 113 N.M. 192, 824 P.2d 332.
{20} The “heart” of the speedy trial right “is preventing prejudice to the accused.” Garza, 2009–NMSC–038, ¶ 12, 146 N.M. 499, 212 P.3d 387. We analyze prejudice against a defendant under three interests: (1) preventing oppressive pretrial incarceration, (2) minimizing anxiety and concern of the accused, and (3) limiting the possibility that the defense will be impaired. Id. ¶ 35. We are mindful that “some degree of ... anxiety is inherent for every defendant ... awaiting trial.” State v. Maddox, 2008–NMSC–062, ¶ 33, 145 N.M. 242, 195 P.3d 1254 (alterations, internal quotations marks, and citation 2 omitted), abrogated on other grounds by Garza, 2009–NMSC–038, ¶¶ 47–48, 146 N.M. 499, 212 P.3d 387. “Therefore, we weigh this factor in the defendant's favor only where ... the anxiety suffered is undue.” Garza, 2009–NMSC–038, ¶ 35, 146 N.M. 499, 212 P.3d 387. A defendant is not required to show that he experienced “greater anxiety and concern than that attending most criminal prosecutions.” Salandre v. State, 1991–NMSC–016, ¶ 32, 111 N.M. 422, 806 P.2d 562, holding modified on other grounds by Garza, 2009–NMSC–038, ¶ 22, 146 N.M. 499, 212 P.3d 387. “The operative question is whether the anxiety and concern, once proved, has continued for an unacceptably long period.” Id. “It 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.” 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. See Spearman, 2012–NMSC–023, ¶ 39, 283 P.3d 272.
{21} The district court found that Defendant suffered prejudice because he “lived under a cloud of anxiety, suspicion[,] and hostility from the beginning of the case up to the date of the hearing [on his motion to dismiss]”; “[a]fter the case was dismissed and refil[ ]ed, ... Defendant's girlfriend ended her long[-]term relationship with ... Defendant because he had become unbearable to live with[ ]”; and “Defendant testified [that] he became unbearable mainly due to the continued stress of the criminal proceedings against him.”
{22} Defendant testified that at the time he was arrested, he had been serving on the Gallup Fire Department for twenty years and had risen to the level of Lieutenant. As part of his duties he was a CPR instructor; taught at the fire academy and the U.S. Department of Defense; and worked with children through the Police Athletic League, the Boys and Girls Club, and in local schools teaching fire prevention. He testified that after he was arrested in March 2012, Albuquerque and Gallup newspapers published articles about the allegations against him, and his supervisor told a news reporter during a television interview that Defendant was “a black eye to the ... department.” Defendant was demoted to general “firefighter” status, resulting in a dramatic decrease in pay, and he was stripped of all of his supervisory and teaching duties. He testified that his department restricted him from having any contact with females, regardless of their age, even to the extent that he was not permitted to perform CPR on females during emergency medical calls. His supervisors began writing him up for numerous minor infractions and indirectly suggested that he retire to “save [his] retirement” before he was fired. As a result, Defendant retired early, causing him to receive a lower pension than he would have received had he retired a few years later, as he had previously intended.
{23} Defendant testified that he and his girlfriend of seven years and her children—his “family”—were ostracized at work and in the community and that most of his friends who had children stopped communicating with him. After the State refiled the charges against him in October 2012, Defendant's family left him and moved to Silver City. He later tried to reconcile his relationship with his family, and he moved to Silver City to be closer to them. However, he could not secure employment in Silver City due to the pending charges. His family left him a second time due to his inability to find work and the stress of “being charged again.” He testified that between the time of his arrest and the time of the hearing on his motion to dismiss, his weight dropped from 280 pounds to 189 pounds and that this nearly 100–pound weight loss was due to stress and not being able to eat or sleep.
{24} The State did not present any evidence to show that Defendant had not suffered these forms of prejudice, other than confirming that his retirement was “voluntary,” that Defendant had been arrested once before in 2008 for domestic battery, and that one of the reasons that his family left him was because of his behavior in response to his stress around the pending charges.
{25} We defer to the district court's factual findings regarding whether Defendant suffered prejudice from the delay, see Spearman, 2012–NMSC–023, ¶ 19, 283 P.3d 272, and we conclude that the prejudice was not only “actual” and “particularized[,]” but that it was “substantial[,]” “undue [,]” see Garza, 2009–NMSC–038, ¶¶ 13, 35, 146 N.M. 499, 212 P.3d 387, and it “continued for an unacceptably long period[,]” see Salandre, 1991–NMSC–016, ¶ 32, 111 N.M. 422, 806 P.2d 562. Although some of the harm occurred while the first case was pending, it continued and was unnecessarily prolonged seven to twelve months by the State's deliberate delay when it dismissed and refiled the case. Defendant suffered additional prejudice after the charges were refiled: his family left him—twice, and he was unable to secure a job. 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's defense. See Spearman, 2012–NMSC–023, ¶ 37, 283 P.3d 272; see also Salandre, 1991–NMSC–016, ¶ 18, 111 N.M. 422, 806 P.2d 562 (stating that the speedy trial right “protects against interference with a defendant's liberty, disruption of employment, curtailment of associations, subjection to obloquy, and creation of undue anxiety”); State v. Vigil–Giron, 2014–NMCA–069, ¶ 56, 327 P.3d 1129 (stating that “anxiety, loss of employment, continued inability to find work, and ... public humiliation” suffered by the defendant “are forms of prejudice that the speedy trial right is intended to curtail”).
{26} Thus, the evidence presented to the district court identified the types of serious disruptions and other severe hardships that can be weighed heavily in Defendant's favor. We will not substitute the State's view of the severity of Defendant's personal hardships and anxiety level for that of the district court. See Spearman, 2012–NMSC–023, ¶ 19, 283 P.3d 272. Taking into account the additional delay arising from the State's intentional dismissal and refiling of the charges to avoid the October 2012 trial setting, the 4 overall anxiety and personal hardship suffered by Defendant in this case was much more severe. See Garza, 2009–NMSC–038, ¶ 25, 146 N.M. 499, 212 P.3d 387 (“The reasons for a period of the delay may either heighten or temper the prejudice to the defendant caused by the length of the delay.” (internal quotation marks and citation omitted)). Under these circumstances, we agree with the district court that the prejudice factor weighed heavily in Defendant's favor.
{27} The length of delay weighs at least slightly or even more heavily in Defendant's favor. The assertion of the right is weighed slightly in favor of Defendant. The reasons for the delay and the undue prejudice suffered weigh heavily in Defendant's favor. None of these Barker factors weigh in the State's favor. Therefore, on balance, we conclude that the Barker factors weigh sufficiently in Defendant's favor and the district court appropriately dismissed Defendant's charges on speedy trial grounds. See Spearman, 2012–NMSC–023, ¶ 17, 283 P.3d 272.
{28} We affirm the district court's order dismissing this case with prejudice.
{29}