June 28, 2019- State of New Mexico v. Joseph Vigil, No. A-1-CA-35215

OCR transcription for search; preserved printed pages are authoritative

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Court of Appeals of New Mexico
Filed 6/28/2019 8:43 AM

a

STATE OF NEW MEXICO,
Plaintiff-Appellee,
v. No. A-1-CA-35215
JOSEPH VIGIL,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Mary Marlowe Sommer, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

John J. Woykovsky, Assistant Attorney General
Albuquerque, NM .

for Appellee

Law Works L.L.C.
John A. McCall

Albuquerque, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Judge.
{i} Defendant Joseph Vigil appeals from his convictions of armed robbery and

attempt to commit armed robbery, contending that his right to a speedy trial was

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO i ark Reynolds

1 violated and that there was insufficient evidence to support the jury's verdict. We
2 affirm.
3 BACKGROUND
4 {2} 	On March 12, 2013, Defendant drove to an Allsup's gas station in Espanola
5 with Frankie Garduno, parked at a gas pump, and stayed "a while." When Cody
6 Tapia arrived and stopped adjacent to a different gas pump, Defendant quickly
7 relocated the black Ford pickup truck he was driving to the location directly behind
8 Tapia's vehicle. According to eyewitnesses Garduno then "jumped out of the [truck]
9 and 	started 	swinging 	a 	gun 	around." 	Tapia testified 	that 	within 	seconds 	of
10 Defendant's arrival behind him, Garduno exited the truck and appeared at his
11 	passenger, Michelle Radosevich's, side window, pointed the gun past her and at him,
12 and demanded money . .Tapia complied by handing Garduno his wallet. Tapia
13 	testified that Defendant, who remained in the driver's seat of the black pickup truck,
14 was trying unsuccessfully to hold up a sweatshirt to hide his face, and that he heard
15 	Defendant instruct Garduno, "Get it. Let's go. Hurry up." Vigil testified that he also
16 saw Defendant holding up his shirt to hide his face while telling Garduno, "Get in.
17 What are you doing? 	Let's go." Another witness, Jose Atencio, testified that
18 	Defendant instructed Garduno, "Let's go," and hid his face with a white sweater.
19 	{3} 	Garduno then demanded more money from Radosevich, and when she refused
20 to give him her purse, Garduno began striking Radosevich with the firearm in his
2

1 hand. Radosevich also testified that Defendant told Garduno, "Come on, get it, let's
2 go," during the robbery. Tapia, Radosevich, Vigil, and Atencio all testified that
3 Defendant did not seem shocked or surprised by Garduno' s actions. Tapia eventually
4 brought Garduno to the ground in a chokehold, and other witnesses helped Tapia
5 restrain Garduno until the police arrived. After Tapia restrained Garduno, Defendant
6 exited the truck and fled the gas station on foot. Police eventually apprehended
7 Defendant and returned him to the gas station.
8 {4} 	Prior to the trial at which he was convicted, Defendant filed a motion to
9 dismiss for violation of his speedy trial right, and the State responded opposing it.
10 The district court heard and denied the motion without issuing findings of fact and
11 	conclusions of law. Afterward, Defendant appealed, asserting in his docketing
12 	statement that his right to a speedy trial had been violated, and this Court "remanded
13 	to the district court for the limited purpose of obtaining written findings and
14 conclusions on the various speedy trial considerations[.]" The district court entered
15 	findings of fact and conclusions of law on March 15, 2016, after which full briefing
16 ensued. 	We address the pertinent aspects 	of the district court's findings 	and
17 conclusions as necessary in our discussion below.
3

1 DISCUSSION
2 I. 	The District Court Did Not Err in 	Denying Defendant's Motion 	to
3 	Dismiss for Violation of His Speedy Trial Right
4 {5} 	On appeal, Defendant contends that the delay in bringing his case to trial was
5 twice 	as 	long 	as 	the 	threshold 	for 	when that 	delay 	becomes 	presumptively
6 prejudicial, and that the. district court erred in classifying certain periods of delay as
7 neutral. Defendant further argues that he made multiple demands for a speedy trial
8 that should be weighed in his favor, and that he demonstrated with particularity that
9 he was prejudiced based upon his Post-Traumatic Stress Disorder (PTSD) diagnosis,
10 and the fact that Tapia's and Radosevich's testimony changed between the grand
11 	jury indictment and trial.
12 {6} 	The State agrees that the delay in bringing Defendant to trial, which was
13 	ultimately a little over twenty-six months, is presumptively prejudicial since this is
14 a simple case, and thus weighs heavily in Defendant's favor, but argues that
15 	application and balancing of the remaining factors set forth in Barker v. Wingo, 407
16 U.S. 514, 530-32 (1972), warrant affirmance. The State argues that seven months of
17 delay weigh against Defendant, "over eleven months weigh neutrally, five months
18 	either weigh against [Defendant] or they weigh neutrally, and less than two months
l
19 weigh either neutrally or slightly in [Defendant's] favor." Additionally, th~ State
20 contends that because all but one of Defendant's speedy trial demands were pro
21 	forma, they should weigh only slightly in his favor. Lastly, the State argues that
4

1 Defendant did not make a particularized showing of prejudice because there was no
2 oppressive pretrial incarceration, nor evidence establishing undue anxiety or that the
3 	delay impacted Defendant's ability to present a defense.
4 A. 	General Principles and Standard of Review
5 	{7} 	The Sixth Amendment of the United States Constitution, as applied to the
6 states by the Fourteenth Amendment, provides that "[i]n all criminal prosecutions,
7 the accused shall enjoy the right to a speedy and public trial[.]" See State v. Garza,
8 2009-NMSC-038, 110, 146 N.M. 499,212 P.3d 387 (internal quotation marks and
9 citation omitted). 	The New Mexico 	Constitution offers similar protection and
10 provides that "[i]n all criminal prosecutions, the accused shall have the right to ...
11 	a speedy public trial." N.M. Const. art. II, § 14. This right recognizes that "there is
12 a societal interest in bringing an accused to trial" and "[t]he heart of the right ... is
13 	preventing prejudice to the accused." Garza, 2009-NMSC-038, 112.
14 {8} 	Our Supreme Court has adopted the United States Supreme Court's balancing
15 	test articulated in Barker, which identified four factors to be weighed by a revie':'7ing
16 court in analyzing a defendant's speedy trial claim: ( 1) the length of delay in bringing
17 the case to trial, (2) the reasons for the delay, (3) the defendant's assertion of the
18 right to a speedy trial, and (4) the actual prejudice to the defendant caused. by the
19 delay. Garza, 2009-NMSC-038, 1 13. "Each of these factors is weighed either in
20 	favor of or against the [s]tate or the defendant, and then balanced to determine if a
5

1 defendant's right to a speedy trial was violated." State v. Spearman, 2012-NMSC-
2 023, ,r 17, 283 P.3d 272. "[T]he factors have no talismanic qualities, and none of
3 them are a necessary or sufficient condition to the finding of a violation of the right
4 [to a] 	speedy trial." Id. 	,r 18 (alteration, internal quotation marks, and citation
5 omitted). "Rather they are related factors and must be considered together with such
6 other circumstances as may be relevant." Id. (internal quotation marks and citation
7 omitted). "[W]egive deference to the district court's factual findings, but we review
8 the weighing and the balancing of the Barker factors de novo." Id. ,r 19 (alterations,
9 internal quotation marks, and citation omitted); State v. Lujan, 2015-NMCA-032,
10 ,r 10, 345 P.3d 1103 (same).
11 	B. 	Discussion and Weighing of the Factors
12 	1. 	Length of Delay
13 	{9} 	The "length of delay" factor serves a dual purpose when analyzing a Speedy
14 trial violation. State v. Serros, 2016-NMSC-008, ,r 22, 366 P.3d 1121. First, it acts
15 	as a threshold triggering mechanism used to 	determine whether the delay is
16 "presumptively prejudicial" so as to continue with a full speedy trial analysis. Id.
17 	Second, it is the first independent Barker factor that must be addressed to determine
18 	whether a defendant's speedy trial rights have been violated. See id. ,r 22. If the delay
19 crosses 	the 	"presumptively 	prejudicial" 	threshold, 	a 	speedy 	trial 	analysis 	is
20 warranted. Id. A delay is presumptively prejudicial if the delay exceeds "[twelve
6

1 months] for a simple case, [fifteen] months for a case of intermediate complexity,
2 and [eighteen] months for a complex case." Id. We note here that the State calculated
3 the delay from the date of arrest until trial, but Defendant calculated the delay from
4 Defendant's final remand into custody until trial. In this case, we calculate the delay
5 from the date of arrest until trial, see State v. Brown, 2017-NMCA-046, ,r 17, 396
6 P.3d 171, thus we utilize the State's calculation of the delay, which was from
7 Defendant's arrest on March 12, 2013, until his trial began on May 18, 2015. The
8 parties and the district court agree that this case was simple and the parties agree that
9 the delay of just over twenty-six months exceeded the twelve month benchmark for
10 simple cases, and thus a full speedy trial analysis is warranted. The delay of just over
11 	twenty-six months weighs heavily in Defendant's favor, since typically any delay
12 over twelve months for a simple case is presumptively prejudicial. See Serros, 2016-
13 	NMSC-008, ,r 22.
14 2. 	Reasons for Delay
15 	{10} 	"Closely related to [the] length of delay is the reason the [state] assigns to
16 justify the delay." Garza, 2009-NMSC-038, ,r 25 (internal quotation marks and
17 citation omitted). "Our courts have recognized three types of delay that may be
18 	attributable to the state and one type attributable to the defense." Brown, 2017-
19 NMCA-046, 	,r 	18. 	First, 	intentional 	delay 	"is 	a 	deliberate 	attempt 	to 	delay
20 prosecution of the case in order to hamper the defense[,]" which weighs heavily
7

1 against the State. Id. Second, negligent or administrative delay "weighs more lightly
2 against the state, but it [is] still [an] ... unacceptable reason[] for delaying a criminal
3 prosecution once it has begun." Id. (internal quotation marks and citation omitted).
4 As the length of delay attributable to negligent or administrative delay increases,
5 "this type of delay begins to weigh more heavily against the state." Id. Third, there
6 are various types of delay that ·are justified for valid reasons, such as a missing
7 witness, "which are neutral and do not weigh against the state." Id. Finally, there is
8 delay that is caused by the defendant, which is weighed against him or her. See id.
9 This Court must analyze each period of delay separately to determine the reason for
10 each delay and against which party the delay weighs.
11 	a.
12
13 	{11}
March 12, 2013 	to 	October 29, 2013-Seven and a Half Months of
Neutral Delay
Defendant was arrested on March 12, 2013, and indicted for attempt to
14 commit armed robbery, conspiracy to commit armed robbery, felon in possession of
15 	a firearm, and armed robbery. 1 Defendant's case was joined with Garduno' s on April
1
During a pre-trial conference, the State acknowledged that the felon in
possession of a firearm count should be severed from the rest of the case and stated
that it would dismiss that count. It does not appear that the State filed its dismissal
of that count, but on the first day of trial, the State filed an amended grand jury
indictment that charged Defendant with conspiracy to commit armed robbery, armed
robbery of Tapia, and attempt to commit armed robbery of Radosevich, omitt~ng the
felon in possession of a firearm count. The next day, the State filed a second
amended grand jury indictment that charged Defendant with the same crimes, but
amended Count 2, armed robbery, to 	state that Defendant stole a wallet and
sunglasses from Tapia, not U.S. currency, which was what the first amended grand
8

1 16, 2013. [RP 5] Defendant was arraigned on April 22, 2013, and the same day the
2 district court entered a discovery order and trial scheduling order, the latter of which
3 scheduled jury selection for August 20, 2013. On July 29, 2013, Judge Stephen
4 Pfeffer entered an amended trial scheduling order that set trial for September 24,
5 2013. 	Defendant moved to 	sever his 	case 	from 	Garduno's 	during 	a pretrial
'
6 conference on August 26, 2013, a request to which the State stipulated, and Judge
7 Pfeffer entered an order severing the cases that same day. On September 23, 2013, .
8 and based on Defendant's own request during the August 26, 2013 hearing, Judge
9 Pfeffer ordered that Defendant be evaluated for competency to stand trial and stayed
10 the case until the district court determined Defendant's competency.2
11 	{12} 	Judge Sommer, the fourth district court judge to preside over this case and
12 who entered findings and conclusions on remand, found this period of time to be
13 	neutral because it "was due to a combination of court scheduling, reassignment of
14 cases, and delays that should be held neutral between the parties." Defendant agrees
jury indictment stated. The district court declared a mistrial with respect to Count 1,
conspiracy to commit armed robbery, because the jury could not reach a unanimous
decision. The jury ultimately convicted Defendant of count 2, armed robbery, and
Count 3, attempt to commit armed robbery.
2Defendant's attorney later informed District Judge Sheri A. Raphaelspn, the
third judge to preside over this case, and the State that Dr. Susan Cave evaluated
Defendant and found him to be competent. The district court's finding that there was
"nothing further in the record about the [competency] evaluation taking place" was
incorrect, although the district court's suspicion "that the competency matter got lost
in the shuffle" was reflected in the fact that the competency stay was never lifted.
9

1 that the delay from Defendant's arraignment on April 22, 2013, to August 20, 2013,
2 and from August 26, 2013, to September 23, 2013, was neutral.
3 	{13} 	Judge Pfeffer next set trial for October 29, 2013, but announced his retirement
4 six days thereafter. Although a notice of judge reassignment is not contained within
5 the record, sometime between when Defendant's case was severed from Garduno's
6 on August 26, 2013 and October 25, 2013, when Defendant peremptorily excused
7 him, Judge Glenn Ellington was briefly assigned to this case. On the same day
8 Defendant excused Judge Ellington, Judge Raphaelson was assigned to preside over
9 this case. Given Judge Raphaelson's ensuing order resetting the trial, it did not take
10 place as scheduled on October 29, 2013.
11 	{14} 	Defendant argues that the delay from September 23, 2013 to October 29,
12 	2013, was because of Judge Pfeffer's retirement and was therefore administrative
13 	delay and thus weighs in favor ofDefendant. Judge Sommer concluded that the delay
14 was neutral even though it was administrative. However, delays due to competency
15 	evaluations and proceedings "should generally not count against the state for speedy
16 trial purposes because the state cannot try an incompetent defendant." State v. Stock,
17 2006-NMCA-140, 119, 140 N.M. 676, 147 P.3d 885. We do not agree that the delay
18 	from September 23, 2013, to October 29, 2013, should weigh in Defendant's favor
19 (and against the State) since that delay was due to the competency evaluation he
20 requested. Because we conclude there was no administrative delay prior to October
10

1 30, 2013, and the case was proceeding normally until October 30, 2013, we agree
2 with the district court that the period of time between March 12, 2013, and October
3 29, 2013, should be weighed neutrally.
4 	b.
5
6 {15}
October 30, 2013 to March 24, 2014---Five Months of Administrative
Delay
Judge Raphaelson next scheduled trial to take place on March 24, 2014. This
7 nearly five month period of delay qualifies as administrative delay since it was a
8 product of judicial reassignments following Judge Pfeffer' s retirement, and as such
9 it weighs against the State. See Garza, 2009-NMSC-038, ,r 29 ("The remainder of
10 the delay is attributable to the multiple reassignments of judges in the district court.
11 	This delay falls within the administrative burdens on the criminal justice system,
12 	such as overcrowded courts[.] ... For purposes of analyzing a speedy trial claim,
13 	this type of delay is considered negligent delay and is weighed against the State
14 accordingly." (citations omitted). Thus, we do not agree with the district court's
15 	conclusion that this portion of the delay was neutral. Rather, because the delay
16 between October 30, 2013, and March 24, 2014, was administrative, "the extent to
17 which it weighs against the [s]tate depends on the length of the delay." Garza, 2009-
18 NMSC-038, ,r 30. Five months of delay comprises almost half of the presumptively
19 prejudicial delay of twelve months for a simple case and thus, this time :Period
20 weighs against the State because this delay "was negligent but not protracted, this
21 	factor weighs only slightly in [the d]efendant's favor." Id. ,r,r 9, 30 (concluding ten-
11

1 month and six-day delay, approximately six months of which was administrative,
2 extended "only slightly beyond the threshold to trigger the speedy trial inquiry, and,
3 therefore, is not extraordinary.")
4 c. 	March 25, 2014 to October 2, 2014-Six Months of Delay Caused by
5 	Defendant
6 	{16} 	On February 10, 2014, Judge Raphaelson reset the trial date at Defendant's
7 request from March 25, 2014 to July 14, 2014, because he wished to have his former
8 co-defendant Garduno testify at his trial, and Garduno' s trial would not be completed
9 until the summer. During docket call on June 10, 2014, defense counsel told the
10 district court that jury selection could be scheduled for September since he believed
11 	that Garduno' s trial would be completed by then. The district court then set jury
12 selection for September 16, 2014, with trial to begin on October 1, 2014. "[A]ny
13 	delay caused by the defendant generally weighs against the defendant." State v.
14 Deans, 2019-NMCA-015,, 10, 435 P.3d 1280. Judge Sommer concluded that the
15 	delay from March 24, 2014, to September 16, 2014, was attributable to Defendant
16 "based upon [the] trial strategy of waiting for the trial of Garduno to take place." We
17 agree, and also conclude that the ensuing delay until October 2, 2014, is attributable
18 	to Defendant for the same reason, and thus this portion of the delay from March 25,
19 2014 to October 2, 2014, weighs against Defendant. See id.
12

1 d. 	October 3, 2014 to January 8, 2015---Three Months of Neutral Delay
2 {17} 	Thirteen days before jury selection for the October 3, 2014, trial setting,
3 defense 	counsel 	filed 	a motion to 	withdraw 	because he 	discovered 	that 	he
4 represented Garduno in a separate matter in May 2009. The next day, the district
5 court permitted defense counsel to withdraw, vacated the jury selection and trial
6 settings, and declared that "[t]he delay caused by this withdrawal is hereby counted
7 against [D]efendant." On September 24, 2014, David Silva entered his appearance
8 for Defendant and demanded a speedy trial on Defendant's behalf. On November
9 20, 2014, the district court entered an amended scheduling order setting docket call
10 	for February 24, 2015, and jury selection for March 23, 2015. On January 8, 2015,
11 	Defendant's case was reassigned, this time to Judge Sommer.
12 	{18} 	We do not agree with the district court's conclusion that this period of delay
13 	from October 3, 2014 to January 8, 2015, should be weighed against Defendant.
14 Although 	"the 	actions 	of defense 	counsel 	ordinarily 	are 	attributable 	to 	the
15 	defendant[,]" 	Serros, 	2016-NMSC-008, 1 46, "[i]t seems unfair, 	however, to
16 	attribute delays to [the d]efendant when the delays are solely attributable to his
17 counsel[,]" especially in the context of whether his right to a speedy trial was
18 	violated. Stock, 2006-NMCA-140, 1 21 (refusing to hold delay of one-and-a-half
19 years against the defendant because his counsel failed to communicate the result of
13

1 his competency evaluation for that long). We therefore conclude that this period of 	,
2 delay is neutral and should not be held against either party.
3 e. 	January 9, 2015 to March 11, 2015-Two Months of Administrative
4 	Delay
5 {19} 	On January 15, 2015, the district court entered an amended scheduling order
6 setting trial for April 14, 2015. On February 6, 2015, Defendant filed his motion to
7 dismiss for violation of his speedy trial right, and the State responded opposing it.
8 The district court heard the motion on March 11, 2015. Judge Sommer concluded
9 that this delay was due to the district court's reassignment of cases. As we stated
10 earlier, delays associated with the reassignment of judges and general administrative
11 	burdens on the criminal justice system, as this delay was, are administrative delay
12 and weigh against the State. See Garza, 2009-NMSC-038, 129 (holding that delays
13 	because of judicial resassignments are administrative, but are considered negligent
14 and "weighed against the [s]tate accordingly"). The degree to which this delay
15 	weighs against the State depends upon its length, and because this delay lasted only
16 two months, it was "negligent but not protracted" and thus weighs "only slightly in
17 	[the d]efendant's favor." Id. 1129-30.
18 f. 	March 12, 2015 to May 4, 2015-Two Months of Administrative Delay
19 	{20} 	During this period of time, this case proceeded normally following the ~istrict
20 court's denial of Defendant's motion to dismiss for violation of his speedy trial right.
21 	As such, this is neutral delay. See State v. Parrish, 2011-NMCA-033, 125, 149 N.M
14

1 506, 252 P.3d 730 (weighing period neutrally where "the case progressed with
2 customary promptness").
3 g. 	May 5, 2015 to May 18, 2015-Two Weeks of State Delay
4 	{21} 	Approximately five weeks before trial, the State moved to change the trial
5 date from May 4, 2015 to May 18, 2015, because Radosevich and Atencio were not
6 available on May 4, 2015. Because the State's witnesses were not available on the
7 trial date, this delay was justified and is therefore "neutral and do[es] not weigh
8 against the state." Brown, 2017-NMCA-046, 118.
9 	h. 	Overall Determination of the Reasons for Delay
10 	{22} 	We 	conclude 	that 	twenty-six 	months 	of 	delay 	occurred 	in 	this 	case.
11 	Approximately thirteen months are neutral delay, seven months were administrative
12 delay weighed against the State, and six months were caused by Defendant and thus
13 	are weighed against him. Because half of the delay in this case is neutral delay, and
14 the State caused only one month more delay than Defendant, we conclude that the
15 	reasons for delay generally do not weigh for or against either party. See State v.
16 	Castro, 2017-NMSC-027, 1123-24, 402 P.3d 688 (concluding that fifteen months
17 of negligent delay weighed slightly against the 	state, 	and that the 	remaining
18 	seventeen months of delay were either justified or attributable to the defendant, and
19 weighing reasons for delay factor "only slightly against the [s]tate"); Gallegos,
20 2016-NMCA-076, 122 (weighing reasons for the delay factor against the state, but
15

1 not heavily, because a little over half of the delay in the case was neutral, and a little
2 less than half of the delay was weighed against the state); State v. Fierro, 2012-
3 NMCA-054, ,r,r 39-49, 278 P.3d 541 	(holding that reasons for the delay factor
4 weighed against the defendant when there was ten to eleven months of delay that
5 weighed against the state, eleven months of neutral delay, and two-and-a-half years
6 of delay caused by the defendant).
7 3. 	Assertion of the Right
8 	{23} 	"[T]he timeliness and vigor with which the right [to a speedy trial] is asserted
9 may be considered as an indication of whether a defendant was denied [the right] to
10 	[a] speedy trial over his objection or whether the issue was raised on appeal as [an]
11 	afterthought." 	Garza, 	2009-NMSC-038, 	,r 	32. 	Accordingly, 	we 	consider
12 Defendant's assertion or failure to assert his right to a speedy trial as a factor in
13 	determining whether Defendant was deprived of that right. St!e id. ,r 31. In this
14 consideration, "[the appellate courts] assess the timing of the defendant's assertion
15 	and the manner in which the right was asserted." Id. ,r 32. "[W]e accord weight to
16 the 'frequency and force' of the defendant's objections to the delay [and] analyze
17 the defendant's actions with regard to the delay." Id. 	(citations omitted). The
18 	individual circumstances of each case must be closely analyzed. Id. ,r 33.
19 	{24} 	Defendant asserted his right to a speedy trial four times: first in a pro-forma
20 assertion in a demand for a speedy trial filed on May 8, 2013, when his first attorney
16

1 entered his appearance; second in another pro-forma assertion in a second demand
2 for a speedy trial filed on December 20, 2013, when his second attorney entered his
3 appearance; third in another pro-forma assertion in a third demand for a speedy trial
4 filed on September 29, 2014, when his third attorney entered his appearance; and
5 finally in his motion to dismiss for violation of his speedy trial right on February 6,
6 2015.
7 {25} 	Although the district court did not discuss Defendant's third assertion, the
8 district court discounted the first two assertions because Defendant requested a
9 competency evaluation soon after the first assertion and because the same defense
10 counsel who filed the second assertion also later moved to delay the trial date
11 	multiple times, and then withdrew shortly before a trial setting, which resulted in
12 	further delay. We disagree with the district court's discounting of two out of
13 	Defendant's three pro-forma assertions, since pro-forma assertions "still are entitled
14 to some weight." Serros, 2016-NMSC-008, , 	77; Garza, 2009-NMSC-038, , 	34
15 	(holding that a single demand for a speedy trial, "tucked within the waiver of
16 arraignment and not guilty plea," was sufficient in combination with no evidence
17 that the defendant had acquiesced to the delay and weighing this factor slightly in
18 	the defendant's favor). We conclude that Defendant's four assertions of his speedy
19 trial right should weigh in his favor.
17

1 4. 	Prejudice
2 {26} 	"The 'heart' of the speedy trial right 'is preventing prejudice to the accused."'
3 Lujan, 2015-NMCA-032,, 20 (quoting Garza, 2009-NMSC-038,, 12). Prejudice
4 to a defendant during a speedy trial analysis is determined through an investigation
5 into conditions that may arise from lengthy pretrial delays. "We have identified three
6 different· types 	of prejudice in a speedy trial analysis: 	(1) oppressive pretrial
7 incarceration, (2) the accused's anxiety and concern, and (3) the possibility of an
8 impairment to the defense." State v. Moreno, 2010-NMCA-044,, 36, 148 N.M. 253,
9 233 	P.3d 	782. 	Generally, 	the 	defendant 	has 	the 	burden 	of proof to 	show
10 "particularized prejudice." Serros, 2016-NMSC-008,, 86 (internal quotation marks
11 	and citation omitted). "As to the first two types of prejudice, some degree of
12 oppression and anxiety is inherent for every defendant who is jailed while awaiting
13 	trial." Garza, 2009-NMSC-038, , 	35 (alterations, internal quotation marks, and
14 citation omitted). "Therefore, we weigh this factor in the defendant's favor only
15 	where the pretrial incarceration or the anxiety suffered is undue." Id. 	(emphasis
16 added). Defendant bears the burden in this regard. See Serros, 2016-NMSC-008,
17 , 89. Because this Court has determined that the reasons for the delay factor did not
18 	weigh in favor of either party, Defendant must establish the prejudice factor in order
19 to show that his right to a speedy trial has been violated. See id.
18

1 .{27} 	We first examine whether Defendant's pretrial incarceration was oppressive,
2 which "depends on the length of incarceration, .whether the defendant obtained
3 release prior to trial, and what prejudicial effects the defendant has shown as a result
4 	of the incarceration." Id. 189 (internal quotation marks and citation omitted). "[T]he
5 main factor to be evaluated is the length of incarceration." Moreno, 2010-NMCA-
6 044, 137. "It cannot be denied that two-and-one-half years of pretrial incarceration[,
7 during 	which] 	one's 	life 	[is] 	on 	indefinite 	hold, 	waiting 	for 	one's 	trial 	to
8 commence-is very substantial prejudice, of the precise kind that the [s]peedy [t]rial
9 [c]lause was meant to avoid." Id. (alteration, internal quotation marks, and citation
10 omitted). 	Compare 	Serros, 	2016-NMSC-008, 	1 	90 	(holding 	that 	pretrial
11 	incarceration of over four years is "oppressive on its face"), with Salandre· v. State,
12 	1991-NMSC-016, 129, 111 N.M. 422, 806 P.2d 562 (holding that bond restrictions
13 	for one month were not oppressive).
14 	{28} 	Here, Defendant was arrested on March 12, 2013, and was apparently out of
15 	custody by April 15, 2013, when he was summoned following his indictment. At his
16 arraignment on April 22, 2013, Defendant was out of custody on a posted $25,000.00
17 cash or surety bond and was placed on electronic monitoring. That saQ}e day
18 Defendant tested positive for cocaine and opiates and was remanded to custody.
19 Defendant was again released from custody on May 20, 2013, but tested positive for
20 cocaine again on or about June 14, 2013, and was remanded back to custody on or
19

1 about July 8, 2013. Defendant remained in custody until his trial started on May 18,
2 2015. Defendant was therefore in custody for this case for approximately two years.
3 Although two years is similar to the two-and-a-half years that Moreno termed "very
4 substantial prejudice," 2010-NMCA-044,, 37, Defendant had two opportunities to
5 avoid incarceration, but because of his failure to comply with his conditions of
6 release, those opportunities were not fruitful. We are not persuaded that Defendant
7 has proven he suffered undue incarceration under the circumstances here, and
8 because we so conclude, we need not consider Defendant's argument that his PTSD
9 alone establishes that he was oppressively incarcerated due to the delay in this case.
10 See Garza, 2009-NMSC-038, , 	35 ("[W]e weigh th[e prejudice] factor [due to
11 	oppressive pre-trial incarceration and anxiety and concern] in the defendant's favor
12 only where the pretrial incarceration or the anxiety suffered is undue." (emphasis
13 	added)).
14 	{29} 	Defendant also argues that his defense was impaired by the delay in this case
15 	because Tapia' s and Radosevich' s trial testimony concerning his statements differed
16 from their earlier statements to law enforcement and their grand jury testimony.
17 	Specifically, Tapia testified at the trial that Defendant said, "Get it. Let's go. Hurry
18 	up." Tapia later admitted that he did not refer to any statement made by Defendant
19 during his grand jury testimony, in his written statement to law enforcement, or
20 during pre-trial interviews. Similarly, Radosevich did not refer to any of Defendant's
20

1 statements in her written statement to law enforcement, but testified in front of the
2 grand jury that Defendant said, "Let's go, come on, knock it off," and "Come on,
3 let's go, let's just go." During the trial, Radosevich testified that Defendant said,I
4 "Come on, get it, let's go[.]" Defendant speculates that the differences are due to the
5 twenty-six months of delay.
6 {30} 	We do not find the differences that Defendant highlights to be significant, and
7 certainly not so significant that Defendant was prejudiced, in part because another
8 witness 	corroborated 	Radosevich's 	and 	Tapia's 	trial 	testimony 	concerning
9 Defendant's statements during the robbery. Vigil testified that Defendant said, "Get
10 	in. What are you doing? Let's go." In addition, the fact that Radosevich did not
11 	testify that Defendant said, "Knock it off/ during trial is not sufficient to conclude
12 that Defendant was prejudiced by the delay in his trial.
13 	{31} 	Defendant also argues that Tapia did not tell law enforcement or testify in
14 front of the grand jury that Defendant held up a shirt to hide his face during the
15 	robbery, but that he later testified during trial that Defendant did so. Tapia was not
16 the only witness who testified that Defendant held up a shirt to hide his face during
17 the robbery; both Vigil and Atencio also testified to that fact. We therefore conclude
18 that Tapia's testimony at trial concerning Defendant's efforts to hide his face.during
19 the robbery was not prejudicial in terms of the delay of his trial.
21

1 C. 	Balancing the Four Factors
2 	{32} 	In weighing and balancing the Barker factors, "[c]entral to the analysis is
3 whether a defendant suffered prejudice as a consequence of the delay." Gallegos,
4 2016-NMCA-076, 	, 	32. 	"However, 	even 	in 	the 	absence 	of 	a 	showing 	of
5 particularized prejudice, the state violates a defendant's constitutional right to a
6 speedy trial when the ... length of delay and the reasons for the delay weigh heavily
7 in the defendant's favor and the defendant has asserted his right and not acquiesced
8 to the delay." Id. (alterations, internal quotation marks, and citation omitted). The
9 length of the delay of twenty-six months weighs heavily in Defendant's favor, and
10 his assertion of the right to a speedy trial also weighs in his favor, but not heavily.
11 	The reasons for delay do not weigh in favor of either party. Significantly, Defendant
12 	did not show with particularity that he was prejudiced because of undue anxiety and
13 	pre-trial incarceration, nor was Defendant's ability to defend himself impaired
14 because of the delay. Primarily because Defendant did not suffer actual prejudice
15 	resulting from the delay, and also because Defendant and the State caused almost
16 equal amounts of delay, which together equaled the amount of neutral delay, we
17 affirm the district court's determination that the State did not violate Defendant's
18 right to a speedy trial. See id. 	,, 33-34 (concluding no speedy trial violation where
19 the defendant did not demonstrate particularized prejudice and there were ·almost
22

1 seventeen months of neutral delay and almost sixteen months of negligent and
2 administrative delay that was not weighed heavily against the state).
3 II.
4
5 	{33}
There Was Sufficient Evidence to. Support Defendant's Convictions for
Armed Robbery and Attempted Armed Robbery
Defendant argues that there was insufficient evidence that he helped, caused,
6 or encouraged the commission of armed robbery and attempted armed robbery. The
7 State, in light of the jury instructions, contends that Defendant challenges only the
8 third element of the crime of armed robbery: that Defendant helped, encouraged, or
9 caused armed robbery to be committed. 3 Regarding the challenged element, the State
10 described the trial evidence that supported it, and argued that the jurors could have
11 	reasonably inferred that Defendant helped, encouraged, or caused armed robbery to
12 be committed. We agree with the State and affirm.
13 	1. 	Standard of Review
14 	{34} 	In reviewing a sufficiency of the evidence claim, we must determine "whether
15 	substantial evidence of either a direct or circumstantial nature exists to support a
16 verdict of guilt beyond a reasonable doubt with respect to every element essential to
3It is not clear whether Defendant challenges the sufficiency of the evidence
supporting his conviction for attempted armed robbery. The elements of both armed
robbery and attempted armed robbery under accessory liability are substantially
similar, so we assume for the purposes of this appeal that Defendant intended to
challenge both convictions. 	Compare UJI 14-2822 NMRA (aiding or abetting;
accessory to crime other than attempt and felony murder), with UJI 14-2820 NMRA
(aiding or abetting; accessory to crime of attempt).
23

1 a conviction." State v. Duran, 2006-NMSC-035, ,-r 5, 140 N.M. 94, 140 P.3d 515
(
2 (internal quotation marks and citation omitted). On appeal, "[w]e will not reweigh
3 the evidence or attempt to draw alternative inferences from the evidence [as] we do
4 not share the original ability of the jury to view the evidence and witnesses firsthand;
5 therefore, we defer to the jury's findings." State v. Sanchez, 2015-NMCA-077, ,-r 16,
6 355 	P.3d 	51 	(internal 	quotation 	marks 	and 	citation 	omitted). 	Additionally,
7 "[e]vidence is viewed in the light most favorable to the guilty verdict, indulging all
8 reasonable inferences and resolving all conflicts in the evidence in favor of the
9 verdict." State v. 	Garcia, 2011-NMSC-003, ,-r 5, 149 N.M. 185, 246 P.3d 1057
10 (internal quotation marks and citation omitted).
11 	2. 	Analysis
12 	{35} 	For armed robbery as an accessory, the jury was instructed that Defendant:
13 	may be found guilty of armed robbery ... even though he himself did
14 	not do the acts constituting the crime, if the [S]tate proves to your
15 	satisfaction beyond a reasonable doubt that:
16
17
18
19
1.
2.
3.
Defendant intended that armed robbery be committed;
Armed robbery was committed;
Defendant helped, encouraged[,] or caused armed robbery to be
committed.
20 Similarly, for attempted armed robbery as an accessory, the jury was instructed that
21 	Defendant:
24

1
2
3
4
5
6
7
may be found guilty of attempt to commit armed robbery . . . even
though he himself did not do the acts constituting the attempt, if the
[S]tate proves to your satisfaction beyond a reasonable doubt that:
1.
2.
3.
Defendant intended that armed robbery be committed;
An attempt to commit armed robbery was committed;
Defendant 	helped, 	encouraged[,] 	or 	caused 	the 	attempt 	to
commit armed robbery.
8 The question on appeal is whether there was "substantial evidence of either a direct
9 or circumstantial nature ... to support a verdict of guilt beyond a reasonable doubt
10 with respect to" whether Defendant helped, encouraged, or caused armed robbery;
11 	and attempt to commit armed robbery to be committed. Duran, 2006-NMSC-035,
12 15 (internal quotation marks and citation omitted).
13 	{36} 	The-evidence presented by the State at trial was that Defendant intentionally
14 drove the vehicle he and Garduno were in to a location directly behind Tapia's and
15 	Radosevich's vehicle. As soon as Defendant stopped the truck behind Tapia's and
16 Radosevich' s vehicle, Vigil testified that Garduno then "jumped out of the vehicle
17 and started swinging a gun around."
18 	{37} 	During Garduno's robbery of Tapia and Radosevich, Tapia observed that
19 Defendant sat in the driver's seat of the truck while holding up a sweatshirt to hide
20 his face and that "he didn't appear shocked. He was just in a hurry to get out of
21 	there." Radosevich, Vigil, and Atencio all testified that Defendant did not seem
22 shocked or surprised by Garduno's actions. Tapia heard Defendant say during the
25

1 robbery, "Get it. Let's go. Hurry up." Radosevich heard Defendant say something
2 similar during the robbery: "Get it, let's go, come on, let's go, get it[.]" Vigil
3 corroborated Tapia's and Radosevich's testimony, testifying that he heard Defendant
4 say, "Get in. What are you doing? Let's go[,]" or "Let's go, get in," and also saw
5 Defendant hold his shirt up to hide his face. Atencio also saw Defendant hold up a
6 white sweater to hide his face and heard Defendant tell Garduno, "Let's go." After
7 Tapia tackled Garduno, both Vigil and Atencio observed Defendant depart the scene
8 on foot. See State v. Flores, 2010-NMSC-002, ,-r 23, 147 N.M. 542, 226 P.3d 641
9 ("Not only may [the d]efendant's acts before and during the crime provide evidence
10 	of intent [or] evidence of flight ... may prove consciousness of guilt.").
11 	{38} 	. We have no trouble concluding that these facts constitute substantial evidence
12 that proves beyond a reasonable doubt that Defendant helped, encouraged, or caused
13 	armed 	robbery 	and 	attempt to 	commit 	armed 	robbery. 	We 	therefore 	affirm
14 Defendant's convictions for armed robbery and attempt to commit armed robbery.
15 	CONCLUSION
16 {39} 	For the aforementioned reasons, we affirm the district court's denial of
17 Defendant's motion to dismiss for violation of his right to a speedy trial. We also
18 	affirm Defendant's convictions for armed robbery and attempt to commit.armed
19 robbery as supported by substantial evidence.
26

1 {40} IT IS SO ORDERED.
2
3
e. musin
J. MILES HANISEE, Judge
WE CONCUR:
4 5 Jacqueline P. Medina
6|JACQUELINE R. MEDINA, Judge
2
8|BRIANA H. ZAMORA, Judge
27