¶1dissenting.
¶2The district judge indicated that she felt compelled to dismiss based on violation of defendant’s sixth amendment speedy trial rights in light of Zurla v. State, 109 N.M. 640, 789 P.2d 588 (1990), but invited the state to appeal. The state did and the majority affirms the dismissal. While the district judge’s reading of Zurla may have warranted dismissal, I believe that the supreme court’s most recent pronouncement in Salandre v. State, 111 N.M. 422, 806 P.2d 562 (1991), warrants a determination of no violation and should permit this case to proceed to trial on the merits. I will not repeat the majority’s discussions of Salandre, but will give my dissenting view as to how I think each factor should be weighed and finally balance those factors.
¶31. Length of Delay.
¶4The majority determines a thirteen-month delay and I agree. Although four months of that delay was taken up with negotiations which in part benefitted defendant, Salandre teaches that such period should not be subtracted from the length, but may, as I read the decision, be considered under the reason for delay. The thirteen-month delay is presumptively prejudicial and, therefore, triggers the balancing requirement.
¶52. Reason for Delay.
¶6Although part of the delay was occasioned waiting for grand jury so the defendant could be indicted, the state does not rely on that as a reason. Instead it argues that the time spent in plea negotiations initiated by defendant should not be held against the state.
¶7The state breaks down the thirteen-month delay as follows: prior to the indictment there was an eight-month delay; after indictment a five-month delay to trial date. With regard to the post-indictment delay, this five-month delay was not unreasonable. See SCRA 1986, 5-604(B). Therefore, argues the state, the real focus should be on the eight-month delay from arrest to indictment. Of that time the state points to three and one-half weeks of active plea negotiations and four months of negotiations and a three-month period from the breakdown of negotiations until indictment.
¶8There were six pleas discussed within the four-month period. Defendant argues that the state could and should have sought an indictment notwithstanding those negotiations. While this may be so, contra United States v. Litton Systems, Inc., 722 F.2d 264 (5th Cir.1984) (difficult to charge prosecution with failure to try defendant while defendant was engaged in seeking legal relief, including plea bargaining, to prohibit trial; but when negotiations were terminated, state should have pressed for expeditious disposition of pending motions), it is worth noting that at no time before approximately six weeks prior to the trial date did the defendant demand prosecution. See United States v. Jones, 475 F.2d 322 (D.C.Cir.1972) (no meaningful assertion of right where defendant waits until evening of trial to invoke it and then only as a basis for getting rid of the prosecution). In my opinion the reason for delay favors neither side and should be rated as a neutral. See United States v. Jones (no real basis for faulting either side); State v. Pippin, 72 N.C.App. 387, 324 S.E.2d 900 (1985) (plea bargaining is mutually beneficial).
¶9I would rate it as a neutral for an additional reason, a policy reason. Unless the state acts in bad faith in negotiations — that is, for example, negotiating in bad faith to gain time or delay — I see problems in penalizing the state for entering into negotiations, particularly where, as here, they were initiated by the defendant. See State v. Pippin (permitting defendants to avail themselves of this beneficial process and then to subsequently base speedy trial claims on delays expended in plea negotiations would be grossly prejudicial to state); Reed v. State, 506 So.2d 277 (Miss.1987) (where defendant acquiesced in and initiated much of the plea bargaining that caused delay, defendant cannot thereafter complain). The law favors settlements. Bogle v. Potter, 68 N.M. 239, 360 P.2d 650 (1961). If we were to hold this reason against the state, we would discourage settlement negotiations and plea bargains. This would not only violate public policy but would, I believe, bring about a rather strange and ironic result. In many of these speedy trial cases, particularly out of the Second Judicial District, shortage of manpower has been cited as one of the reasons for delay. Although perhaps not always excusable, I would think that the courts would be most reluctant to add to that problem by discouraging settlements which would undoubtedly free up more prosecutors to process other cases.
¶103. Assertion of Right.
¶11There is no argument here that defendant timely asserted his right, although it is worth noting again that this was done after the trial court scheduled the case for trial and only six weeks prior to the trial date. If defendant truly suffered from any of the rights guaranteed by the sixth amendment, one would expect that he would make such assertion early and often. See Zurla. See also United States v. Jones.
¶124. Prejudice.
¶13Defendant offers nothing more than generalized prejudice in the form of anxiety, worry, lapse of memory; items that one would expect to result from accusation of almost any crime. In other words, he did not offer any testimony of a particularized nature. The state argues that where the claim of the prejudice is of a general nature, the burden of proof placed on it under Zurla is not only onerous but virtually impossible. Thus, the state says that if it does not know what particular prejudice is claimed, it has no way to meet its burden.
¶14The three elements of prejudice claimed by defendant are weak. First, with respect to his claim of liberty, he was placed on bond at the time of his arrest and did not argue below that his freedom was restricted. See United States v. Jones. Additionally, it is uncontested that part of defendant’s incarceration was for a parole violation. Zurla teaches that losing the opportunity to serve concurrent sentences may be a consideration; however, here that would not apply because defendant was released before the delay became excessive. Second, defendant offered no testimony as to specific anxiety; therefore, the state has nothing to overcome. Finally, as to impairment of defense, defendant indicates, without testimony as to specific impairment, that his memory faded. Again, given the simple nature of the case, battery on a police officer, it was the officer’s word against the defendant’s. Absent some medical basis for loss of memory, I do not find a claim of loss of memory in thirteen months persuasive, particularly with ongoing criminal proceedings and plea negotiations taking place during that span. Cf. Zurla (potential loss of two witnesses who may have witnessed incident). Furthermore, defense counsel conceded that this is not an “in-depth factual circumstance.” See also State v. Grissom, 106 N.M. 555, 746 P.2d 661 (Ct.App.1987) (unspecified allegations of impaired defense are unpersuasive); United States v. Litton Systems, Inc. (before trial, degree to which delay has impaired defense is speculative at best).
¶15Salandre states that the presumption of prejudice guarantees the dismissal of the charges only in face of the state’s failure to advance either evidence or argument in support of its burden to show that there has been no violation of the speedy trial right. In this case, I think, the state more than adequately met that burden. With the reason for delay weighing neither in favor of defendant nor against the state, the assertion of the right by defendant weighing in his favor but certainly not heavily, and there being no showing of prejudice, I would hold the defendant’s sixth amendment rights were not violated. In Salandre, the court concluded that case was a close one. Based on Salandre, I would say that this is not a close case.
¶16With all due respect, I believe the majority has misread Salandre. If I am incorrect, then it will be extremely difficult for the state to meet its burden in speedy trial claims. In looking back at Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the seminal case on the subject, one has to question whether the sixth amendment to United States Constitution requires the result reached by the majority today. In my opinion it does not.
¶17For the reasons stated, I respectfully dissent.