Zurla v. State

• Decision Date: 25 January 1990
• Docket Number: No. 18348,18348
• Citation: 1990 NMSC 11,109 N.M. 640,789 P.2d 588
• Parties: Vincent ZURLA, a/k/a Vincent James Zurla, a/k/a Henry Vialpando, a/k/a Harry Vialpando, a/k/a David Vincent Serna, Petitioner, v. STATE of New Mexico, Respondent.
• Court: New Mexico Supreme Court

Page 588

789 P.2d 588

109 N.M. 640

Vincent ZURLA, a/k/a Vincent James Zurla, a/k/a Henry

Vialpando, a/k/a Harry Vialpando, a/k/a David

Vincent Serna, Petitioner, v. STATE of New Mexico, Respondent.

No. 18348.

Supreme Court of New Mexico.

Jan. 25, 1990.

[109 NM 641] Hal Stratton, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for respondent.

Jacquelyn Robins, Chief Public Defender Wade H. Russell, Asst. Appellate Defender, Santa Fe, for petitioner.

OPINION

RANSOM, Justice.

Vincent Zurla was arrested on a shoplifting charge while on parole for a prior conviction. Nineteen months later his case came to trial, and he was convicted on one count of shoplifting over $100. He appealed to the court of appeals, arguing inter alia that his sixth amendment right to a speedy trial had been violated. The court of appeals affirmed the conviction. We granted certiorari and reverse.

Zurla was arrested on December 14, 1985. The following day, he posted a $2,500 bond and was released. On December 16, he was arraigned in metropolitan court. On January 24 or 25, 1986, Zurla's parole was revoked because of the pending charges against him and because he had consumed intoxicating beverages, also in violation of his parole. Between January 27, 1986, and May 22, 1987, Zurla was in the custody of the Department of Corrections on his parole violation. Shortly after returning to prison and with the help of a paralegal at the Department of Corrections, Zurla filed (apparently in metropolitan court) a pro se motion to have his trial set within six months, pursuant to SCRA 1986, 5-604. Zurla testified that the motion listed as his address the Department of Corrections' facility in Los Lunas.

Zurla was indicted in district court on August 26, 1986. The district court was unaware that Zurla was being held in custody for a parole violation and issued a bench warrant for his arrest. Although Zurla's bond was transferred from metropolitan court to district court on September 19, 1986, the bench warrant for Zurla's arrest was not cancelled until the day after he was arraigned in district court. Zurla was not arraigned until March 2, 1987, after the Department of Corrections notified the district court that it was holding him. It was at this time that Zurla first discussed the charges against him with an attorney.

A trial date first was set on a trailing docket for April 27, 1987, but was reset for May 15, 1987. Seventeen months lapsed between Zurla's arrest and the May 15 trial date. This date was continued at defendant's request until July 16, 1987. On July 9, Zurla moved to dismiss the charges for failure to afford a speedy trial as provided in the New Mexico and United States Constitutions.

Evidence was adduced before the trial court that the district attorney's office could have located Zurla simply by placing a phone call to the Department of Corrections' Central Records Office, but apparently this phone call never was made. Moreover, district court employees testified that, unless notified by the district attorney who presents a case to the grand jury, a district court judge often has no way of knowing whether a defendant is being held in custody or has been released on bond when deciding whether to issue a bench warrant or to send notice of arraignment to the defendant.

Zurla also claimed that two potentially exculpatory witnesses had left New Mexico subsequent to his arrest and now could not be located. According to testimony by Zurla and his wife, a neighbor and another woman whom they did not know were waiting in their car in the parking lot of the store when Zurla was arrested by a store security guard. According to Mrs. Zurla's testimony, these witnesses were in the car when, prior to her husband's arrest, she came back to the car in order to get her purse to pay for the goods. Mrs. Zurla also testified, however, that the car was parked some distance from the entrance to the store and was too far away for these witnesses to have seen Zurla's arrest. Thus, it is unlikely that they could have corroborated the testimony by Mrs. Zurla and her husband that he was apprehended inside the store and had not intended to steal anything. The motion to dismiss was denied on July 16 and Zurla proceeded to trial.

Nature of speedy trial right. The Supreme Court has declared the sixth amendment right to a speedy trial to be a fundamental constitutional right that applies to the states through the fourteenth amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court set forth a four-prong test as a guide to the determination of speedy trial claims: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2191; see also State v. Kilpatrick, 104 N.M. 441, 722 P.2d 692 (Ct.App.), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986), on remand from Kilpatrick v. State, 103 N.M. 52, 702 P.2d 997 (1985).

These four factors, however, have no talismanic qualities; no one factor constitutes either a necessary or sufficient condition to finding a deprivation of the right to a speedy trial. Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193, see also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (prejudice not essential to showing deprivation of speedy trial right). In applying this test, "courts must * * * engage in a difficult and sensitive balancing process * * * carried out with full recognition that the accused's interest in a speedy trial is * * * specifically affirmed in the Constitution." Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193

In its memorandum opinion, ¹ the court of appeals held that the first three Barker v. Wingo factors, i.e., the length of delay, the reason for the delay, and the defendant's assertion of his right, all weighed in favor of Zurla, but not heavily in his favor. The court also held that Zurla failed to show prejudice and on balance had failed to show that his speedy trial rights were violated.

We disagree. We believe the court of appeals incorrectly weighed the first three Barker v. Wingo factors too lightly in favor of the defendant and incorrectly concluded the state had prevailed on the prejudice prong of the analysis. As the court of appeals did on direct appeal, we now independently balance the factors considered by the trial court in deciding whether a speedy trial violation has taken place. See United States v. Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986), on remand, 784 F.2d 1407 (9th Cir.1986); State v. Grissom, 106 N.M. 555, 746 P.2d 661 (Ct.App.1987).

Length of delay. We note first our agreement with the court of appeals that the seventeen-month delay between arrest and the first trial date in a case as simple as this one was presumptively prejudicial and triggers inquiry into the remaining three factors. See Grissom, 106 N.M. at 561-62, 746 P.2d at 667-68 (delay totaling sixteen months that was attributable to state in complex conspiracy and racketeering case sufficient to trigger speedy trial analysis); State v. Kilpatrick, 104 N.M. at 444, 722 P.2d at 695 (delay of fifteen months in a simple assault case presumptively prejudicial).

However, we disagree with the court of appeals as to the weight to be given this factor. "[D]elay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192. Given the sixteen-month period of time found presumptively prejudicial in Grissom, we weigh the seventeen-month delay in this simple shoplifting case somewhat heavily against the state.

Moreover, we note that the state's chief evidence against Zurla was the testimony of the security guard who alleged he apprehended Zurla attempting to leave the store without paying for merchandise, and that this testimony was available to the state from the day of Zurla's arrest. See United States v. Butler, 426 F.2d 1275, 1277 (1st Cir.1970) (absent good reason, delay of nine months overly long in case depending on eyewitness testimony), appeal after remand, 434 F.2d 243 (1st Cir.1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1207, 28 L.Ed.2d 328 (1971). Butler was cited with approval in Barker v. Wingo, 407 U.S. at 531, n. 31, 92 S.Ct. at 2192, n. 31, as an example of a set of circumstances in which courts should tolerate less delay.

Reason for the delay. The court of appeals found the state simply was negligent in failing to locate Zurla and, therefore, did not weigh this factor heavily against the state. We disagree with this result. While Barker v. Wingo termed negligent delay a "more neutral reason" that, along with excessive caseload, weighed "less heavily" against the state than intentional delay, 407 U.S. at 531, 92 S.Ct. at 2192, simply denominating the reason advanced by the state as "negligent delay" is not sufficient to fix the weight to be given to this consideration. See Graves v. United States, 490 A.2d 1086, 1092 (D.C.App.1984) (en banc) (recognizing an intermediate category of delay for government actions, including failure to take reasonable means to bring a case to trial, that are deemed more culpable than delay due to court congestion and less culpable than tactical delay), cert. denied, 474 U.S. 1064, 106 S.Ct. 814, 88 L.Ed.2d 788 rec'd as overruled in part on other grounds, Sell v. United States, 525 A.2d 1017 (D.C.App.1987) (Loud Hawk mandates reasonable delay to pursue appeal be treated as justifiable delay); Taylor v. State, 429 So.2d 1172, 1174 (Ala.Crim.App.) (while state's negligence in bringing defendant to trial did not necessarily tip scales in favor of defendant, sheer bureaucratic indifference weighs heavily against state), cert. denied, 464 U.S. 950, 104 S.Ct. 366, 78 L.Ed.2d 326 (1983). In weighing this factor we stress two principles...