Zurla v. State

P.2d 588 ZURLA, Vincent James Vincent a/k/a

Zurla, Henry Vialpando, a/k/a a/k/a Vialpando,

Harry David Vincent a/k/a Petitioner, Serna, Mexico, Respondent. of New

STATE

No. 18348.

Supreme Court of New Mexico.

Jan. 1990.

19, 1986, the bench warrant for Zurla’s arrest was not cancelled day until the after arraigned he in was district court. Zurla arraigned 2, 1987, was not until March Department after the of Corrections noti- fied the holding district court that it was Stratton, Gen., Atty. MacQues- Hal Gail him. It was at this time Zurla that first Gen., ten, Fe, Atty. respon- Asst. Santa for charges against discussed the him with an dent. attorney. Robins, Jacquelyn Chief Public Defender A trailing trial date first a was set on Russell, Appellate Wade H. Asst. Defend- April docket for but was reset for er, Fe, petitioner. Santa May lapsed 1987. Seventeen months between May Zurla’s arrest and the 15 OPINION date. This date was continued at defen- RANSOM, Justice. request July dant’s July until 1987. On shoplift- Vincent Zurla was arrested on a Zurla charges moved to dismiss the ing charge parole on prior while for a con- a speedy provided failure afford trial as viction. Nineteen months later his case in the Mexico New and United States Con- trial, came to and he was on one convicted stitutions. shoplifting count of appeal- over He $100. Evidence was adduced before the trial

ed inter appeals, arguing to the court of attorney’s court the district office alia that his sixth amendment to a simply by placing could have located Zurla speedy trial had been violated. The court phone Department a call to Correc- affirmed conviction. We Office, apparent- tions’ Central Records but granted certiorari reverse. ly phone call never was made. More- 14, over, Zurla on employees was arrested December district court testified following day, posted attorney 1985. The he by a unless notified the district who $2,500 grand presents bond and was released. On Decem- a case jury, a district ber arraigned metropolitan knowing in judge way often has no being January court. On 24 or Zurla’s whether a in defendant is held custo- parole pending dy was revoked or has on because of the been released bond when charges against deciding him and because he had whether to issue bench warrant a intoxicating beverages, arraignment consumed also or send notice parole. January violation of his Between defendant.

27, 1986, 22, 1987, May Zurla was potentially Zurla also claimed that two custody Department of Correc- exculpatory witnesses had left New Mexico parole Shortly tions on his violation. after subsequent arrest and to his now could returning prison help and with the a According testimony by Zur- be located. paralegal Department of Correc- wife, neighbor la and his and another tions, (apparently metropoli- Zurla filed they woman whom did not know were wait- court) pro tan his trial se motion to have ing parking car in lot of the their months, pursuant set within six to SCRA store store when Zurla was arrested that the mo- 5-604. Zurla testified guard. security According to Mrs. Zurla’s Department of tion listed as his address the testimony, were the car these witnesses in Los Lunas. facility Corrections’ arrest, when, she prior to her husband’s get car in her on came back to the order Zurla was indicted in district court goods. purse for the Mrs. Zurla August pay district court was 1986. The testified, however, being in cus- also the car was held unaware that Zurla parked from the entrance to some distance tody parole for a violation issued away for these Although the store and was too far for his arrest. bench warrant have seen Zurla’s arrest. from metro- witnesses to Zurla's bond was transferred Thus, unlikely September they could have it politan court to district court Zurla, in his heavily favor. The testimony Mrs. Zurla of but corroborated Zurla apprehended he was court also held that failed show her husband that had not intended to and on balance had failed to show inside the store and rights anything. speedy The motion to dismiss was trial were violated. steal that proceeded July 16 and Zurla to denied on disagree. the court of We We believe trial. incorrectly weighed appeals the first three The Su speedy right. trial Nature lightly in Wingo factors too fa- Barker v. of the sixth amend preme Court has declared incorrectly con- vor of the defendant a speedy trial to be funda ment a prevailed preju- the state had on the cluded applies to that mental constitutional analysis. prong of the As the court of dice through amend the fourteenth the states appeals appeal, on direct we now inde- did Carolina, Klopfer 386 ment. v. North the factors considered pendently balance 988, (1967). 1 213, 18 L.Ed.2d deciding a the trial court whether 514, 92 S.Ct. v. 407 U.S. Wingo, In Barker place. speedy trial violation has taken (1972), 2182, Supreme Hawk, 302, v. Loud 474 U.S. United States guide four-prong test as a set forth a Court (1986), 648, 88 L.Ed.2d 640 of trial claims: the determination remand, (9th Cir.1986); 1407 784 F.2d delay, delay, for the “Length the reason Grissom, 555, 106 N.M. v. right, and assertion of his the defendant’s (Ct.App.1987). 661 530, at 92 to the defendant.” Id. 2191; Kilpatrick, State v. S.Ct. at see also delay. We note first our Length of (Ct.App.), cert. 722 P.2d 692 104 N.M. appeals agreement with the court of (1986), P.2d 1309 delay between arrest the seventeen-month State, Kilpatrick v. on remand simple in case as and the first trial date a from (1985). 702 P.2d 997 N.M. prejudicial presumptively as this one was remaining inquiry into the triggers however, factors, no four have These Grissom, 106 N.M. at factors. See three consti- qualities; no one factor talismanic (delay totaling P.2d at 667-68 condi- necessary either or sufficient tutes attributable to months sixteen finding deprivation tion to complex conspiracy racketeer Wingo, v. 407 U.S. trial. Barker trigger speedy ing case sufficient see also Moore v. analysis); Kilpatrick, State v. Arizona, (delay of fifteen 722 P.2d at 695 (1973) (prejudice not essential presump simple case in a assault months showing deprivation speedy trial prejudicial). tively test, must right). applying this “courts ** * engage in a difficult and sensitive However, disagree with court we * * * with process carried out balancing given this weight to be appeals as to the interest recognition full that the accused’s tolerated for “[Djelay that can be factor. * * * specifically af- in a considerably ordinary crime is street v. Barker firmed in the Constitution.” serious, conspiracy complex less than for a S.Ct. at 2193 407 U.S. at Wingo, 407 U.S. at charge.” Wingo, Barker v. at 2192. Given the sixteen- opinion,1 court of In its memorandum presumptively period of found v. month time first three Barker appeals held that the Grissom, weigh the seven- prejudicial we factors, i.e., simple shoplifting delay in this teen-month delay, and the defendant’s for the reason heavily against the state. weighed somewhat right, in favor case of his all assertion opinion also affirmed assigned in December Zurla's case first 1. The court motion for re- Upon conviction. After a second summary motion from calendar. again opinion hearing, its Department, the court withdrew Public Defender’s the reassigned third, and, opinion on memorandum general and filed calendar the case to the opin- opinion is third 1989. This Zurla's conviction March affirmed opinion. Upon in December a writ of certiorari on which we directed motion for ion in a memorandum rehearing, second, appeals. court of issued a formal the court Moreover, grounds, States, we note that the state’s chief Sell United 525 A.2d against testimony evidence Zurla (Loud (D.C.App.1987) Hawk mandates security guard alleged ap who pursue reasonable appeal be treat prehended attempting Zurla leave justifiable ed delay); Taylor State, paying merchandise, store without 1172, 1174 (while 429 So.2d (Ala.Crim.App.) testimony was available to the negligence in bringing state’s defendant to day state from the of Zurla’s arrest. See did necessarily tip scales in favor Butler, United States F.2d defendant, sheer bureaucratic indiffer Cir.1970) (1st (absent good reason, weighs heavily state), ence against nine overly long months in case denied, 950, 366, 464 U.S. 78 depending eyewitness ap on testimony), (1983). weighing this factor Cir.1970), remand, (1st peal 434 F.2d 243 after principles we stress two from Barker v. 978, denied, 401 rt. U.S. ce (1) Wingo: the four are factors interrelated 1207, (1971). 28 L.Ed.2d 328 Butler was light and must par be evaluated in of the approval cited with v. Wingo, Barker case, ticular circumstances of the 407 U.S. 31, at 407 U.S. n. 92 at S.Ct. n. 2193; (2) at 92 at S.Ct. in evaluat example as an a set of circumstances ing speedy compare trial claims should we in which courts delay. should tolerate less the conduct of the state and the defendant. delay. ap Reason the The court of for 407 92 U.S. at S.Ct. at 2191. peals simply found the negligent state was Here, the extent to the which state’s in failing and, therefore, to locate Zurla did negligence weighs against it is increased weigh against not heavily this factor the by during the of time no which disagree state. We with this result. While attempt was to by made locate Zurla and negligent Barker v. termed a delay early, pro his right se assertion of his to a that, “more along neutral reason” with ex speedy inquire trial. The state failed to caseload, weighed heavily” cessive “less despite being put to Zurla’s whereabouts against the than intentional demanding on notice that he was his 407 at U.S. simply at trial, speedy despite a notice his denominating by the reason advanced the whereabouts, despite simple nature “negligent delay” state as is sufficient charges against of the him.2 This demon- weight to fix given to be to this consid unacceptable strates an indifference States, eration. See Graves v. 490 United prosecution duty to its constitutional “to (en banc) (D.C.App.1984) A.2d 1092 diligent, good-faith a bring make effort a (recognizing category an intermediate defendant to trial.” Smith v. 393 Hooey, actions, delay government including 374, 383, 575, 579, S.Ct. L.Ed.2d failure a bring to take reasonable means to (1969); Harvey, see also trial, case to more culpable that are deemed (Ct.App.1973). N.M. congestion than due to court less “[Wjhere machinery culpable delay), than tactical [administrative] 1064, 106 presence exists a 474 U.S. secure defendant’s at S.Ct. [to part trial], prosecutor rec’d on as overruled other has constitutional hearing preindictment speedy metropolitan 2. At the district court on Zurla’s court file on motion, (including speedy attorney posi- trial the district took the Zurla’s case trial) his motion for a knowledge parole. tion as the state had no actual and the revocation of his More- whereabouts, over, bringing attorney's of the office Zurla’s failure district "irregularity." him to trial did not constitute an to alert the district court that Zurla was in state, however, custody responsibility appears had the from the record to have created case, manage against its case of the Zurla in a manner that much bureaucratic confusion obligation it on a allowed to fulfill its constitutional in which a bench warrant issued bring posted him to trial within a reasonable time. defendant who in fact had bond and then Wingo, custody Department at in fact was in the Barker at attorney chargeable properly in- 2191. The district with Corrections. Had been whereabouts, knowledge have constructive of what reasonable formed Zurla’s he could discharge case-management responsi- arraigned promptly pending those been revealed, charges. e.g., the bilities would have contents attorney it.” 510 trial in Zurla’s made a mo- duty attempt to use Id. charges against him for tion to dismiss the at 1088. P.2d speedy failure afford trial. in that bureaucratic We believe heavily duty weigh A defendant does not have should more difference overload, trial, bring speedy himself to and a simple case against the state than may has violation found even when the de the defendant at be when particularly right. Bark safeguard rights. See Com fendant has asserted tempted to 527-28, Wingo, Lutoff, Mass.App. er v. 407 U.S. at monwealth v. Nevertheless, (1982) the assertion of (preoccupation with 2190-91. 440 N.E.2d strong delay weighs evidentiary entitled as reason other cases deciding weight whether a heavily against state in case in quite persistent place. ef violation has taken Id. at early and made trial). 2192. Under the S.Ct. at circumstances to obtain forts above, we believe this factor described Judge pointed Chavez’ dissent As out weighs substantially in Zurla’s favor. An opinion in this court of from the early assertion precedent case, also previous New Mexico indicates the defendant’s desire to have the for that the reason supports our conclusion charges gambling than resolved rather bringing in Zurla to trial should the operate to hinder passage the of time will Harvey, the in his weigh heavily favor. prosecution. strength a of defendant’s failure, despite the held that the court (i.e., right early of the and/or assertions necessary administrative availability of the frequent) probable the extent also indicates the machinery, seek extradition of defen defendant has suffered from the impris where he was dant from California upon that fall the the inevitable burdens weighed charge unrelated on an oned prosecution, target of criminal burdens Dickey also heavily against the state. See intended to mini was 30, 1564, 26 Florida, 398 U.S. v. 531, 2192. Id. 92 S.Ct. at mize. (1970); Hooey, L.Ed.2d Smith 575, 21 L.Ed.2d 607 to the Prejudice defendant —General (1969). to make an ef failure identi- We believe Barker v. considerations. impris who is prejudice fort to locate a defendant types of fied three different facilities in own corrections oned the state’s the sixth amendment the defendant attempted prison in while and who has was intended to to a early his ac confrontation (1) obtain with prevent: oppressive pretrial minimize or against the heavily weigh also must incarceration; cusers (2) anxiety and concern Nash, 78 in The court Raburn v. state. accused; (3) possibility im- 385, 387, 431 P.2d cert. N.M. pairment defense. 407 U.S. at 582, 19 dismissed, 389 U.S. these, Supreme at 2193. Of (1967) noted: defense impairment Court believed right to prisoner not forfeit his it prejudice, A does because to be the most serious is con- solely system.” because he entire the fairness of the “skews penitentiary under sentence fined in the Id. * * * * par- is This another offense held that Zurla appeals The court that holds ticularly true when the state any of these ele failed demonstrate state that prison is the same him in he The court held that prejudice. ments of presents the indictments. pre oppressive subjected to had not been omitted). (Citations released trial incarceration. Zurla was day Unlike the after his arrest. right. As discussed bond Assertion Kilpatrick, who lived above, motion to be pro se Zurla made a imposed liberty on his months, restrictions pursuant to SCRA under six tried within $2,500 along time bond the entire parole was with shortly after his him, Zur charges pending against were placed custody into and he revoked only lived similar restrictions Before his la under Department of Corrections. prior time to the revocation of his portion short sever a substantial of his New Mex appears parole, albeit the bond itself to ico sentence enough preju [and this] in effect have remained while was dice him.” 85 N.M. at 510 P.2d at custody Department of Corrections. (emphasis original); see also Kilpatrick, 104 N.M. State, State v. at 445- Taylor (Ala.Crim.App.), 429 So.2d 1172 Cf. Moreover, P.2d at 696-97. denied, rt. ce noted, subject Zurla was to revoca (1983); State v. parole regardless Holmes, tion of his of how the 643 S.W.2d 282 (Mo.App.1982). charges pending against him were re Although concurring in Judge the result of Further, held, solved. the court loss of the Lopez’ opinion, the two other members of serving possibility concurrent sentences panel the Harvey Judge did not concur aspect did not constitute an Lopez’ discussion of prejudice, concluding “right because Zurla did not have a to that “the three factors being sentenced” to serve concurrent reason and defendant’s assertion terms, citing Tarango, State v. N.M. of clearly ... outweigh the State’s (Ct.App.), 734 P.2d 1275 equivocal showing that defendant was not (1987), 105 N.M. 734 P.2d 761 and prejudiced....” Powers,

State v. 636 P.2d 303 at 1090. (Ct.App.1981). Finally, held, the court Zur opinions We note that the in Powers and impairment la failed to demonstrate to his Tarango, cited the court of evidence, best, defense because case, failed to cite Hooey Smith v. or conflicting as to whether these witnesses apparent disagreement mention the court’s giving arrest, did see the events rise to his over this issue in Harvey. To the extent and showing because he failed to make a of suggest these cases a rule different from attempts his to locate these witnesses. that Hooey, Smith v. these cases are possi- overruled. We hold that disagree loss of the

We that Zurla did not suf bility of sentencing concurrent constitutes oppressive pretrial fer incarceration and aspect prejudice of as defined under the impaired, that his defense was not al sixth amendment. though degree we conclude that of prejudice under the facts was minimal. —Impairment We of defense. —Oppressive pretrial incarceration. disagree appeals’ also with the court of possibility serving We believe loss of the of analysis of and conclusion on the issue of concurrent sentences did constitute an as- impairment Citing of the defense. State v. pect prejudice.3 Hooey, of Smith v. (Ct.App.), Tartaglia, 108 N.M. 773 P.2d 356 Supreme possibility Court noted that “the denied, rt. 108 N.M. 772 P.2d ce already prison might that the defendant (1989), 352 the court held that Zurla had partially receive a sentence at least concur- proving burden of his serving may rent with the one he is be rights were violated and failed establish pending charge forever lost if trial of the any prejudice. Arguably, the existence of postponed.” 393 U.S. at 89 S.Ct. at Tartaglia may be read to hold either that 577. Loss possibility of this is therefore to proof” the defendant bears “the burden of oppressive pre- be considered an element of prejudice, simply to show or that he bears trial incarceration. Id. evidence,” producing “the burden of and

Citing Hooey, Judge Lopez persuasion, suggested not the of Smith burden that, weigh in Harvey although appeals. wrote the court of defendant “Since favor, ing heavily rights of the defendant’s loss claims his sixth amendment have violated, possibility sentencing of concurrent been he should bear the burden opportunity “denied producing support evidence to his [the defendant] of that, $2,500 during paired period 3. We note while the court held incarcera- this because of the find, however, parole any tion on prejudice, revocation did not amount to bond. We little if additional impairment the court failed to address whether to these interests under the circum- liberty Zurla's interests nevertheless were im- stances. 646

claim,.” prejudicial tively triggered 773 108 thus Tartaglia, N.M. added); analysis, pre (emphasis general 359 see the Barker v. P.2d at Griego, sumption of Mortgage prejudice disappear. El Paso v. does not ly Inv. Co. of (1989) (on Rather, dis persuasion N.M. 771 P.2d 173 of rests burden production of burden state demonstrate tinction between with the on bal ance, of persuasion). burden the defendant’s was suggests violated. To the extent it Tartaglia for reason advanced burden, Tartaglia does state not have production on the placing the burden course, point is overruled. Of as the court prejudice respect defendant with Ackley, out in ed State v. Mont. analysis prong (1982), P.2d “The State’s the state it is difficult to conceive of how prejudice burden to a lack of becomes show effectively rebut could come forward * * * considerably lighter in the of evi absence prejudice without presumption * * * * ” * * * prejudice also dence knowing claims he how defendant Mascarenas, prejudiced. example, For how could (Ct.App.1972) (alternate holding potential claim the state rebut a presumptively established once defendant disappeared exculpatory witness has * * * prejudicial delay, state bore burden may unaware when the be showing prejudice); absence of Graves a person? the existence of such States, (delay of 490 A.2d at 1091 United For N.M. 773 P.2d at 360. presumption year more than creates reasons, the state was held bear similar jus shifts burden state to advancing justify the burden of reasons States, tify delay); Smith v. United presumptively preju- any found to be (D.C.Cir.)(one-year delay F.2d 1120 created Tartag- P.2d dicial. Id. at at 359. presumption prejudice), rebuttable did not also noted that lia as in a prejudice” have to establish “actual (1969); State, 51 Smallwood v. preindictment delay; process claim for due (1982)(in Md.App. sixth 443 A.2d rather, present corrobo- specific had to cases, pre prejudice may amendment be allegations prejudice. Id. ration but, preindictment from in sumed 416, 361; Hooey, at 773 P.2d at v. Smith cf. cases, may pre prejudice not be 384, 575, 580, 374, 21 393 U.S. 89 S.Ct. proved). sumed but must be J., (1969) (Harlan, separate L.Ed.2d 607 (accused fa- opinion) prima interpretation must note to be consist- establish We this Dickey showing prejudice). general principles regarding cie But ent with cf. Florida, 53-57, at v. 398 U.S. at to a criminal defen- prejudice claims (Brennan, J., (consist- concurring) rights. 1576-78 Chapman constitutional dant’s See rights, ent with other sixth amendment California, 87 17 v. 386 U.S. prima case (1967) (when once defendant has made facie defendant raises delay be- by showing government-caused possibility of constitutional er- reasonable preju- point probability yond at which affecting verdict, preju- presumption of ror arose, govern- should to dice burden shift beyond must dice arises that state rebut necessary delay ment to or harm- Sullivan, establish doubt); reasonable Manlove v. error), approval Barker less with cited (1989) (same 775 P.2d at Wingo, at n. v. 407 U.S. appeal). We when error affects burden 2191, n. 30. apply to a different rule to believe place inappropriate claims an would Although Tar the reasons discussed system on a criminal defendant in a burden production the taglia placing burden “places primary on the cogent, that the burden this does not on the defendant are prosecutors and the to to the courts assure provide appropriate an basis to shift persuasion. brought are to trial.” Barker defendant Once cases the burden presump 2191.4 Wingo, the has demonstrated U.S. at S.Ct. at weight Chap- prosecution We do in this case the burden must meet. 4. not decide Zurla, the state to touch with either witness. principles apply these We now an affirmative argues, has failed to make defense was allegations that his Zurla’s showing inability to locate the wit witnesses. by the loss of two impaired was attributable to missing were nesses witnesses maintains Grissom, bringing his case to trial. arrest position to see Zurla’s not in a (evidence therefore, P.2d at 669 and, guard, loss of security store inordinate destroyed delay became impair defense. before testimony did not their defense); impairment of not establish However, they if could not have testi does even Evans, Or.App. 527 P.2d place Zurla’s arrest took as to whether fied cf. (1974), store, according outside the inside or (1975) (prejudice not testimony these witnesses Mrs. Zurla’s when, defendant made no efforts prior car found when waiting in Zurla’s were himself). to defend arrest, obtain lost evidence she came back to her husband’s pay for the get purse her order car to noted, absent such corrobo As we have subsequently was ac goods her husband evidence, rating State’s burden “[t]he testimony stealing. While their cused prejudice becomes consider show a lack of ****’’ question of Zur on the was not conclusive Ackley, Mont. at lighter ably innocence, witnesses guilt or these la’s implication, even By 653 P.2d at 854. story Mrs. Zurla’s have corroborated could carry completely when the state does doubt helped create a reasonable persuasion to show an ab its burden of shoplift. The Zurla intended to whether prejudice, the extent sence of possibil argument fails to rebut state’s prevailed to have defendant can be said ity. substantially in the ab lessens this issue corroborating evidence. See State Nonetheless, sence of only evidence adduced Holtslander, 102 Idaho bearing an hearing on whether at Zurla’s (1981) (presumption the wit attempt had made to locate been weight when defendant has entitled to little testimony that one witness nesses was the alleged produced evidence of California, neither nor along with Mrs. had moved to adduced at The evidence Zurla get prejudice). testimony that she could Zurla’s involuntary often are re- confessions generally, prosecution can noted that if the man held at 624-25. liable. 404 U.S. Moreover, prove beyond a constitu- a reasonable doubt that noted, regardless of the the Court verdict, the error did not contribute tional admissibility, court’s determination may stand. and the verdict error is harmless jury of the circum- has before it evidence still applied Manlove 87 S.Ct. at 828. surrounding means of the confession stances question of whether the same standard to given weight to be which to determine petitioner deprived record alteration of the that confession. Id. appeal. of his to an considering principles present in the In these ap- Supreme Court also has 243. The P.2d at context, compound nature of the note the we Chapman in some sixth plied burden the right. by protected the interests Texas, v. See Satterwhite amendment contexts. analysis— prejudice subparts the of the to Two 100 L.Ed.2d 284 U.S. 108 S.Ct. oppressive pretrial and the anxi- incarceration (1988) (psychological of future dan- evaluation ety little if of the accused—have and concern of gerousness obtained in violation reliability judicial anything of the do with the case). capital in murder counsel variety prejudice, how- process. ever, third of The cases, alleged constitutional when the In other impairment As dis- of the defense. is reliability implicate of the the violation did impairment body opinion, of this cussed in the applied prepon- process, judicial the Court has important most of the defense was seen as the See, e.g., Nix evidence standard. derance the by type prejudice in Barker v. of the Court of Williams, U.S. v. Wingo fairness of the because it "skews the (1984) (admissibility of evidence system.” at U.S. at 92 S.Ct. 2192. entire Thus, illegally con- alleged of an obtained applying to be fruits strong argument for the exists Matlock, fession); analysis United States v. 988, of Chapman at least in the burden (1974) (fourth impairment 39 L.Ed.2d We do not decide of the defense. however, hearings); Lego suppression we conclude question, because amendment carry its burden of Twomey, 30 L.Ed.2d failed to U.S. that the state has preponderance persuasion (1972) (hearings even under the lesser confession was on whether voluntary). Lego, example, Court standard. for the In clearly the defendant able to adduce evidence hearing not show the ex the does efforts, prejudice. if To otherwise any, to locate identifiable hold tent his he present Nor did evidence in effect to this factor “tal- witnesses. would attribute of a the existence causal qualities” sufficient to show antithetical to the under- ismanic unjustified delay relationship Wingo. between standing that animated Barker v. testimony. of these witnesses’ and the loss find at 92 S.Ct. at 2193. We U.S. fully principles case applicable to this Yet, shown how the neither has state by Brennan: articulated Justices White and “presumption of evidence controverts loss of this applied present every prejudice” inevitably as [Prejudice is] above, which, testimony, was fa- extent, noted every defendant case to some Instead, to Zurla’s defense. cially material pending will be incarcerated either argument its absent the state rests on subject restric- or on bail to substantial attempts to locate additional evidence liberty. It is also true that tions on witnesses, there is no basis from these believe time is many defendants will defense to conclude that Zurla’s which prefer on side and will to suffer their impaired. hold balance We disadvantages may en- whatever carry per- has failed to its burden But, early tail. those who desire an defense was suasion show Zurla’s trial, personal pre- these factors should However, impaired. in the absence of only countervailing vail if the considera- attempts corroborating evidence of to lo- by con- tions offered the State are those missing sufficient cate the witnesses prose- nected with crowded dockets loss of their or not the establish whether case A desir- cutorial loads. delay, testimony unjustified due to therefore, trial, should have ing a impairment issue of defense time; only it some within reasonable weighs slightly Zurla’s favor. only more special presenting a circumstances pressing public respect need with reweighing Conclusion. justify delay. itself should suffice case appeals, factors considered the court special are Only if such considerations that Zurla’s sixth amendment we conclude if they outweigh the inev- the case rights by the seventeen- were violated resulting from personal prejudice itable month in this case. Barker necessary it delay, delay would be to consider of the rea factors prej- there has been or would be whether son for assertion to the defendant at trial. weigh substantially heavily or udice all either “[T]he protected against by the Although major do not believe evils Zurla’s favor. we guarantee apart quite exist possibility concurrent the loss of the or possible actual the loss of the two witnesses from sentences nor favor, weighs heavily in these accused’s defense.” United States Zurla’s Marion, 307,] supra at 320 constitute some de [92 factors nevertheless [404 (1971)]. face a set of gree prejudice. We thus one con not unlike the circumstances (concurring Id. at 2195 Harvey, court in sidered opinion). weighed heavily in three factors favor considerations, foregoing on the Based on the issue and record the defendant re- opinion the court “equivocal.” versed, and we remand this case balancing 219, 510 at 1090. In these P.2d with instructions set aside district court as we the same result did the factors reach judgment and sentence and dismiss court there. charges against defendant. unjustifi- when We believe that IT ORDERED. IS SO beyond ably delayed has a defendant’s time, disregarding the defen- a reasonable trial, C.J., MONTGOMERY,J., SOSA, and early for an undue

dant’s demand emphasis placed not be on whether concur. should 26, 1986, August defendant was in-

BACA, J., On dissents. $100, I, count shoplifting dicted for over WILSON, J., participating. shoplifting, commit count conspiracy and BACA, (Dissenting). following month, II. The the bond Justice posted metropolitan defendant had majority respectfully dissent from the I shoplifting on the arrest was transferred to adopt ap- the court of opinion. hereby I unexplained rea- district court. For some 14, 1989) (filed my opinion March peals son, arraigned district defendant was dissent. 2, 1987, months court until March over six Defendant’s trial was set after indictment. Mexico, STATE of New 27,1987, request April and at his it was Plaintiff-Appellee, May July continued to 1987. On vs. released from custo- defendant was dy- ZURLA, a/k/a Vincent James Zur Vincent

la, Henry Vialpando, 9, 1987, Har July a/k/a a/k/a defendant filed a motion On Vialpando, against David Vincent Ser him on ry a/k/a to dismiss the indictment na, Defendant-Appellant. speedy process grounds due be- trial and postin- preindictment cause of the and

No. 10230. denied delays. dictment The trial court trial, Mexico Appeals Court of New At defendant’s motion. acquitted I guilty found on count

March 1990. on count II. OPINION MEMORANDUM TRI- I. DENIAL OF SPEEDY CLAIM OF DONNELLY, Judge. AL rehearing prior opin- On motion for our alleging to a Claims denial of a following ion is and the is sub- withdrawn speedy trial under the sixth amendment of stituted. and Article the United States Constitution Defendant, Zurla, appeals from a Vincent II, 14 of the New Mexico Constitu Section $100,

felony shoplifting conviction for over case-by-case basis. tion are decided on contrary 30-16- to NMSA Section 514, 92 Wingo, 407 U.S. See Barker v. 20(B)(2) (Repl.Pamp.1984). He claims the (1972); 33 L.Ed.2d State by refusing to dismiss the trial court erred (Ct. Grissom, 106 N.M. 746 P.2d 661 (1) against speedy him on: indictment App.1987); Kilpatrick, (2) grounds. grounds process due We (Ct.App.1986). Proof of 722 P.2d 692 affirm. time, more, is not passage without FACTS allegations of denial of a determinative speedy Wingo. In Bark placed trial. Barker Defendant was arrested er, 14, 1985, Supreme four shoplift- Court enumerated custody on December reviewing $2,500 posted sure- factors for courts to consider ing. day The next claims, the first of that is the On either Janu- ty and was released. bond delay. A is suffi parole previous on a ary 24 or his presumption preju give cient to rise to a of his con- conviction was revoked because exist the other intoxicating beverages and dicial must before sumption of be- delay, as charge. factors —reason for the shoplifting Several Barker cause of the trial, later, to a incarcerated in a sertion of the days defendant was prejudice to defendant —are evaluated facility Department of Corrections a defendant has been (DOC) as a result of determine whether prior on the conviction to a trial. State v. A short time later denied parole revocation. Grissom; In this bal Kilpatrick. tried pro filed se motion to be test, ancing prose charge six the conduct both shoplifting within weighed. the defense are cution and months.

Case Details

Case Name: Zurla v. State

Court Name: New Mexico Supreme Court

Date Published: Jan 25, 1990

Citation: 789 P.2d 588

Docket Number: 18348

Court Abbreviation: N.M.