State v. Gutierrez

• Decision Date: 28 December 1978
• Docket Number: No. 1,CA-CR,1
• Parties: STATE of Arizona, Appellee, v. Bartolo Cruz GUTIERREZ, Appellant. 3024.
• Court: Arizona Court of Appeals

Page 50

589 P.2d 50

121 Ariz. 176

STATE of Arizona, Appellee, v. Bartolo Cruz GUTIERREZ, Appellant.

No. 1 CA-CR 3024.

Court of Appeals of Arizona, Division 1, Department B.

Dec. 28, 1978.

John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III and Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee

Skousen, McLaws & Skousen, P.C. by Charles M. Thomas, Mesa, for appellant.

OPINION

JACOBSON, Presiding Judge.

The defendant, Bartolo Cruz Gutierrez, was convicted by a jury of two counts of sale of the narcotic drug, heroin. Following conviction, the trial court placed appellant on probation for a period of five years. He has brought this timely appeal raising three issues:

1. Whether appellant's rights to a speedy trial were violated,

2. Whether the trial court erred in imposing sanctions on appellant for untimely discovery, and

3. Whether the trial court erred in denying appellant's motion to compel the prosecution to reveal the identity of a "confidential informant."

On May 17, 1974, two undercover narcotics officers went to the Victory Acres area in Tempe, Arizona, to purchase heroin. Riding with the officers in their unmarked automobile was a person who had been a confidential informant on other drug cases in the Mesa Tempe area. While the informant and one of the officers, Agent Maggard, waited in the car, the other officer, Agent Acosta, approached a group of men standing near a neighborhood market. The group consisted of four or five men. Acosta then went to the east side of the market with appellant where he disappeared from view for approximately five minutes and then returned to the undercover vehicle with two tinfoil packets. These packets were later shown to contain heroin.

On July 8, 1974, another undercover narcotics officer, Tony L. Garcia, in the company of another Phoenix police detective, drove to a different address in Tempe, approximately two or three blocks from the market involved in the May 17 incident. Officer Garcia there purchased an additional quantity of heroin from appellant.

The initial complaint on the two separate counts was filed December 27, 1974. An arrest warrant was issued on December 30 of that year but appellant was not arrested until December 26, 1975, approximately one year later. Appellant was arraigned on January 21, 1976, following which the trial court granted appellant's motion to dismiss for lack of a speedy trial. This dismissal was without prejudice.

On May 4, 1976, an indictment was issued, again charging appellant with the same two sales. Count one was the May 17, 1974 sale and count two was the July 8, 1974 sale. A summons was issued on May 4, 1976, and another summons issued on October 19, 1976. Because the state was unable to serve appellant, both summonses were quashed. Warrants were then issued and appellant was finally arrested April 24, 1977. His arraignment was held on May 13, 1977, at which time the trial date was set for June 29, 1977. However, the trial court, on its own motion, reset the trial to July 29, 1977. On June 27, 1977, appellant filed a motion to dismiss for lack of a speedy trial. This motion to dismiss was denied and the trial was commenced August 11, 1977.

Appellant first argues that the trial court erred in refusing to grant appellant's motion to dismiss for lack of a speedy trial. After the first dismissal of the charges in April, 1976, the state sought and obtained an indictment on the same charges. This indictment was handed down on May 4, 1976. Appellant, however, was not arrested until April 24, 1977. Appellant argues, based upon the fact that the initial complaint was dismissed for lack of a speedy trial, together with the fact that there was a delay of approximately 11 months from the time of the indictment until the time of the arrest, appellant's right to a speedy trial was again violated, at least as of December, 1976, the time when appellant left the state. Appellant presented evidence at the hearing on the motion to dismiss that he was at all times living openly under his own name and had provided sufficient information on his release questionnaire to enable him to be located through any reasonably diligent inquiry.

We need not concern ourselves here with the period of December 27, 1974, the date of the filing of the initial complaint, through April, 1976, the date of the dismissal without prejudice. Following the dismissal of a criminal action with leave to refile, which dismissal was based upon the denial of a speedy trial, the time limits of the speedy trial rule begin anew with the filing of a new information or the issuance of a summons following the grand jury indictment. See State v. Avriett, 25 Ariz.App. 63, 540 P.2d 1282 (1975). We, therefore, need consider only the time period between the indictment and the trial in determining whether appellant was denied a speedy trial.

Rule 8.2, ¹ Arizona Rules of Criminal Procedure, in effect at the time of appellant's April, 1977 arrest, provides, in part:

"Every person against whom an indictment, information or complaint is filed shall be tried by the court having jurisdiction of the offense within 150 days of the arrest or service of summons . . . ."

Simple calculation shows that appellant's trial which commenced on August 11, 1977, was within 150 days of the April, 1977 arrest. Thus, the state was in compliance with Rule 8.2 in effect at the time of the indictment. Appellant, however, argues that the Rule 8.2 rule change deals only with delays occasioned between arrest and trial and does not affect the fact that, under the United States and Arizona Constitutions, appellant still must be arrested within a reasonable time following the issuance of the warrant or summons. In other words, appellant argues that notwithstanding the amendment to Rule 8.2, there is nevertheless a constitutional right to be arrested in timely compliance with former Rule 8.2. However, with the amendment of the rule, the former rule no longer applies and we therefore must be guided by constitutional considerations in evaluating appellant's argument.

The factors to consider in determining whether an accused has been denied a speedy trial are length of delay, reason for the delay, the assertion of the right to speedy trial and any prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Appellant claims that his case was prejudiced because of the delay as the only witness which appellant was permitted to call, Fernando Armenta, could no longer be located. Appellant further claims that the testimony of Armenta was that of an eyewitness to the June 8 transaction and was material to the issue of appellant's identification. Appellant also argues that he at all times made his whereabouts known to anyone who would have made reasonable inquiry. The facts show, however, that sheriff's deputies contacted appellant's sister in May, 1976, and appellant admitted to seeing his sister some time after that date. Appellant claims that his sister simply did not tell him about the summons although his apparent reason for listing her number on the release questionnaire was so that she could contact him. Sheriff's deputies also contacted appellant's aunt who told sheriff's deputies that appellant and his attorney knew of the summons. However, appellant's aunt did not disclose to the deputies the name of appellant's new lawyer and appellant denied having had any contact with his aunt during 1976. The visit with appellant's aunt in September, 1976 being to no avail, the only other alternative would have been to contact appellant at his place of employment. However, by October 31 of that year, appellant was no longer employed with the company listed on his release questionnaire. ²

It is not the function of the reviewing court to second-guess what might have been done by police officers in performing their investigative functions. The appropriate analysis is whether the officers have used reasonable diligence in attempting to locate the accused, giving deference to the police officers' judgment as to which avenue of investigation is likely to be the most fruitful. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). The sheriff's deputies did attempt to locate appellant through his relatives but appellant did not come forth. It must therefore be assumed that the reason for the failure of the deputies to locate appellant was not from any lack of diligence on their part but through the hindrance of appellant or his relatives. Any prejudice to appellant, moreover, is doubtful. Misidentification was appellant's main line of defense. The state's witnesses were very effectively cross-examined as to their present inability to identify appellant. This lapse of time worked as much in appellant's favor as against him. We, therefore, cannot conclude that appellant was denied his constitutional right to a speedy trial.

Appellant next argues that the trial court erred in granting the state's motion for sanctions which limited appellant's witnesses at trial. Appellant filed a notice of defenses on August 5, 1977. The trial commenced on August 11, 1977. Prior to trial, the state filed a motion for sanctions to exclude certain of appellant's witnesses for failure to provide timely discovery. Appellant's counsel argued that he had a "tacit understanding" with the prosecution that no formal notice of witnesses needed to be filed pending the resolution of the speedy trial issue. The prosecutor denied such an understanding. The addresses of the witnesses listed by appellant's counsel were not given. At least on August 10, 1977, the day before the trial, appellant's counsel was not even aware of the addresses of these witnesses.

Arizona Rules of Criminal Procedure, Rule 15.2(b) and (c), provide that the notice of defenses and the names and addresses of all witnesses must be provided by the defendant within 20 days after the arraignment. Rule 15.7 sets forth the...