Lowe (Lewis) v. Dist. Ct. (State) ( 2015 )

 The first factor is a triggering factor, and a defendant must
show that any delay is of sufficient duration to be considered
‘`presumptively prejudicial" in order to trigger a speedy trial analysis.
Barker, 407 U.S. at 530-32. Although there is no bright line rule, courts
have generally found post-accusation delays to be presumptively
prejudicial as they approach the one-year mark. Doggett v. United States,
505 U.S. 647, 652 n.1 (1992). Here, if trial commences as scheduled on
February 29, 2016, the delay will have been more than 18 months since
Lowe was arrested. This delay is sufficiently lengthy to warrant further
inquiry into the other Barker factors.'
As to the second factor, the original trial date was continued
due to health issues with the co-defendant's prior counsel. The district
court found good cause to continue the subsequent trial date, concluding
that there was no conscious or willful disregard or indifference of Lowe's
rights by the State. The district court denied Lowe's motion to dismiss,
granted his motion for release on his own recognizance, and set the
current trial date to accommodate the pregnancy of the out-of-state victim.
This factor weighs slightly in Lowe's favor. See Barker, 407 U.S. at 531
(holding that "a valid reason, such as a missing witness, should serve to
justify appropriate delay," but that it is ultimately the responsibility of the
government to bring a defendant to trial).
Regarding the third factor, Lowe invoked his right to a speedy
trial and appears to have consistently asserted this right without waiver.
Therefore, this factor weighs in his favor.
'Lowe argues that the delay far exceeds 60 days, but the 60-day rule
relates to the statutory speedy-trial right, see NRS 178.556.
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Lastly, as to the prejudice factor, Lowe argues that he is not
required to prove actual prejudice but may rely on the presumption of
prejudice or that the State has the burden of proving the delay left him
unimpaired to defend himself. 2 However, so long as the State pursues
Lowe with reasonable diligence, his speedy-trial claim fails unless he
demonstrates a specific prejudice to his defense. See Doggett, 505 U.S.
647, 656 ("[I]f the Government had pursued Doggett with reasonable
diligence from his• indictment to his arrest, his speedy trial claim would
fail. Indeed that conclusion would generally follow as a matter of course
however great the delay, so long as Doggett could not show specific
prejudice to his defense."). The district court made clear findings that the
State was not in any way dilatory or that it had any motive of delay in
asking for its continuance, and we give deference to the district court's
findings of fact. See Williams v. Eighth Judicial Dist. Court, 127 Nev.,
Adv. Op. 45, 262 P.3d 360, 365 (2011) ("In the context of a writ petition,
this court gives deference to the district court's findings of fact, but
reviews questions of law de novo.").
Alternatively, Lowe argues that he is prejudiced by the fact
that one of his witnesses is ill and may not be available to testify at a later
trial date and that he may lose witnesses who would advance his theory of
defense. This argument is merely speculation. See United States v. Loud
2 To the extent Lowe argues that he is prejudiced because he has
exhausted an underlying sentence during the pendency of this case and
may lose the time he has already served, we will not consider this
argument because Lowe fails to provide necessary cogent arguments or
supporting documents. See Pan v. Eighth Judicial Dist. Court, 120 Nev.
222, 229, 88 P.3d 840, 844 (2004).
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Hawk, 474 U.S. 302, 315 (1986) (holding that the possibility of prejudice is
insufficient to establish a violation of speedy trial rights). Thus, this
factor weighs against Lowe. See State v. Fain, 105 Nev. 567, 570, 779 P.2d
965, 967 (1989) (concluding that a showing of prejudice is not essential but
that this court may weigh its absence more heavily than other factors).
Having balanced all of the Barker factors, we conclude Lowe
has failed to demonstrate that there has been a speedy-trial violation and
that extraordinary relief is warranted. Winkle v. Foster, 127 Nev., Adv.
Op. 42, 269 P.3d 898, 899 (2011).
Accordingly, we
ORDER the petition DENIED.
J.
Saitta
Gibbons
J.
Pickering
cc: Hon. Kathleen E. Delaney, District Judge
Law Office of Lisa Rasmussen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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