NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
)
)
STATE OF ARIZONA,
)
)
Appellee, )
)
v.
)
)
STEVEN YARRITO,
)
)
Appellant. )
__________________________________)
DIVISION ONE
FILED: 06/30/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
No. 1 CA-CR 10-0205
DEPARTMENT B
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Yuma County
Cause No. S1400CR200900687
The Honorable Mark W. Reeves, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
Phoenix
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And Adriana M. Rosenblum, Assistant Attorney General
Attorneys for Appellee
Michael A. Breeze, Yuma County Public Defender
By
Edward F. McGee, Deputy Public Defender
Attorneys for Appellant
Yuma
S W A N N, Judge
¶1
Steven Yarrito (“Defendant”) was charged with two counts
of sexual conduct with a person under 15 years of age and one
count of contributing to the delinquency of a minor.
moved
for
indictment
dismissal,
in
October
contending
2002
and
that
delay
arrest
his
the
in
Defendant
between
November
violated his Sixth Amendment right to a speedy trial.
his
2008
After
briefing and oral argument, the trial court denied the motion.
Defendant was tried and convicted.
Amendment claim on appeal.
Defendant renews his Sixth
For the reasons stated herein, we
affirm.
FACTS AND PROCEDURAL HISTORY1
¶2
On the evening of March 10, 2002, Defendant invited his
14-year-old cousin “C.H.” out for a ride.
Together they visited
various homes, convenience stores and Defendant’s wife’s place
of work, and during these visits Defendant obtained alcoholic
beverages
and
supplied
them
to
C.H.
While
C.H.
was
drunk
Defendant had sex with her on two separate occasions.
¶3
Initially,
C.H.
kept
the
incident
“felt that maybe I brought it onto myself.”
secret
began
to
suffer
from
she
She avoided contact
with Defendant, which troubled her mother.
C.H.
because
During this time,
insomnia,
methamphetamine heavily, and attempted suicide.
started
using
When her best
friend expressed concern about the changes in C.H.’s behavior,
1
We view the facts in the light most favorable to upholding the
verdict.
State v. Garza, 216 Ariz. 56, 61 n.1, 163 P.3d 1006,
1011 n.1 (2007).
2
C.H. told her about the incident, and was advised to call the
police.
¶4
On June 22, 2002, Yuma Police Officer Laura Scanlan was
sent to meet with C.H., who had called to report “a rape.”
Scanlan interviewed C.H. and obtained a written statement from
her.
Because the crimes were reported three months after they
occurred, there was no useful evidence to collect at C.H.’s
residence.
The case was later assigned to Yuma Police Detective
Debbie Machin.
¶5
Because it was a delayed-reporting case and C.H. was not
in danger, the case was given a lower priority than other cases.2
Machin and C.H. “played phone tag on a couple instances” before
finally meeting on July 23, 2002.
At that meeting they decided
to conduct a confrontation call with Defendant.
C.H. made the
call that same day, and in it Defendant implicitly admitted to
having
sex
with
C.H.
After
the
confrontation
call,
Machin
called four numbers through which C.H. said Defendant could be
reached, identifying herself as “Detective Machin” and leaving a
message
asking
that
Defendant
call
her.
Defendant
did
not
respond to those messages.
2
This pre-indictment delay does not implicate the Sixth
Amendment right to a speedy trial.
State v. Medina, 190 Ariz.
418, 421, 949 P.2d 507, 510 (App. 1997).
3
¶6
Machin did not visit Defendant’s address because she was
told he had left town.
Machin also did not seek to locate the
vehicle in which the crimes took place because the description
she had for it was inadequate.
Machin did not try to obtain the
video surveillance tapes from the stores that Defendant and C.H.
visited on March 10 because she believed they would have been
erased
before
the
police
became
involved.
Nor
did
Machin
contact people who might have corroborated some of the events.
¶7
Defendant was indicted on October 24, 2002, for one count
of sexual assault, one count of sexual conduct with a minor, and
one count of contributing to the delinquency of a minor.
It is
undisputed that the police had no idea where Defendant was at
that time.3
Eventually the U.S. Marshals Service began looking
for Defendant, and determined that Defendant was using assumed
names.
Marshals went to arrest Defendant in Las Vegas but found
he
moved
had
out
the
previous
day.
In
late
2007
marshals
tracked Defendant to El Paso, Texas, but the record contains no
evidence of the police acting on that knowledge for almost a
year.
Defendant was eventually arrested in El Paso on November
3
Some of these facts are from the briefs and oral arguments
concerning the motion to dismiss.
“A trial court is not
required to hold an evidentiary hearing” to determine whether
the state diligently pursued a defendant, “but may consider the
parties' motions containing undisputed facts as well as any
evidence presented.”
Humble v. Super. Ct. (Reinstein), 179
Ariz. 409, 414, 880 P.2d 629, 634 (App. 1993).
4
18,
2008,
and
extradited
to
Arizona
on
February
5,
2009.
Defendant does not contend that there was any undue delay in
bringing him to trial after his arrest.
¶8
On May 14, 2009, the state obtained a new indictment
charging Defendant with the counts in the original indictment,
an additional count of sexual assault and an additional count of
sexual conduct with a minor.
On May 18, 2009, the state moved
to have the case based on the 2002 indictment dismissed without
prejudice because of the new indictment.
The motion was granted
the next day.
¶9
On September 22, 2009, Defendant moved to have the case
dismissed with prejudice for violation of his Sixth Amendment
right to a speedy trial.4
Defendant argued that the six-year
delay between the indictment and his arrest was due to police
negligence, and that he was “severely prejudiced by the delay”
because 1) surveillance videos from retail locations mentioned
in C.H.’s account no longer existed, 2) witnesses were unlikely
to remember pertinent events of that day and 3) timecard records
at Defendant’s wife’s employment had been destroyed.
4
Defendant
Defendant also argued that Ariz. R. Crim. P. 8.2(a)(1)
(requiring that a defendant in custody be tried within 150 days
of arraignment) had also been violated.
Defendant argued that
the new indictment was obtained to “avoid the Rule 8 deadline by
. . . starting the clock anew.”
The trial court held that it
had allowed the state to amend the indictment and that therefore
there was no Rule 8 violation.
Defendant does not raise the
Rule 8 issue on appeal.
5
argued that as a result, evidence that might have contradicted
C.H.’s testimony or established an alibi was “forever lost.”
¶10
The state contended that the police were not negligent,
and that as a result Defendant must prove actual, as opposed to
speculative, prejudice resulting from the delay, citing United
States v. Corona-Verbera, 509 F.3d 1105 (9th Cir. 2007).
With
respect to prejudice, the state contended that the surveillance
videos had “most likely” already been taped over at the time the
crimes were reported (three months later), that at the time of
the report the alleged witnesses were unlikely to remember any
pertinent details of the mundane events they witnessed, that the
wife’s employer’s records were not probative of the essential
facts of the case, and that the wife was still available to
testify about facts that might be pertinent.
¶11
The trial court analyzed the Sixth Amendment claim using
the four factors prescribed in Doggett v. United States, 505
U.S. 647 (1992).
found
the
factor,
delay
which
The court considered the first factor, and
was
uncommonly
concerned
whether
long.
Regarding
defendant
or
the
the
second
state
was
responsible for the delay, the court weighed the allegations of
each side and found that the police had exercised due diligence.
Regarding the third factor, the court found that Defendant had
been
asserting
his
right
to
arraignment.
6
a
speedy
trial
since
his
¶12
With respect to the fourth factor, prejudice, the court
found that the probative value of the evidence which had been
lost was highly speculative.
Further, the court found that the
video surveillance evidence was already unavailable at the time
the crime was reported.
As to the records from wife’s employer,
the court found that no evidence had been adduced to show how or
under what condition those records had been kept during the
relevant time frame.
The court concluded that Defendant had not
shown sufficient prejudice, and denied the motion to dismiss.
¶13
Later, the state amended the indictment, dropping the two
sexual assault charges.
was
convicted
on
all
After a six-day jury trial, Defendant
the
remaining
counts.
Defendant
was
sentenced on February 16, 2010, and timely appeals.
DISCUSSION
¶14
We review Defendant’s Sixth Amendment speedy-trial claim
de novo, but accept the factual determinations of the trial
court
unless
they
are
clearly
erroneous.
United
Gregory, 322 F.3d 1157, 1160 (9th Cir. 2003).
Neither the United States nor the Arizona
Constitution requires that a trial be held
within a specified time period.
In Barker
v. Wingo, [407 U.S. 514 (1972)] the Supreme
Court established a test by which courts
decide
whether
trial
delay
warrants
reversal.
The four-factor Barker analysis
examines (1) the length of the delay; (2)
the reason for the delay; (3) whether the
defendant has demanded a speedy trial; and
(4) the prejudice to the defendant.
In
7
States
v.
weighing these factors, the length of the
delay is the least important, while the
prejudice
to
defendant
is
the
most
significant.
State v. Spreitz, 190 Ariz. 129, 139-40, 945 P.2d 1260, 1270-71
(1997) (internal citations and quotation marks omitted).
¶15
That the length of the delay was uncommonly long and that
the defendant has consistently demanded a speedy trial since his
arraignment
are
both
undisputed.
These
two
factors
could
support Defendant’s claim that his right to a speedy trial was
violated, but neither is dispositive.
I. DILIGENCE BY THE STATE REQUIRES DEFENDANT TO SHOW PREJUDICE.
¶16
A delay can weigh strongly against the state when it is
the product of a “deliberate attempt to delay the trial in order
to hamper the defense.”
neutral
reason[s]”
Barker, 407 U.S. at 531.
for
state-engendered
Other “more
delay,
negligence, weigh less heavily against the state.
Id.
such
as
A valid
reason can justify delay, id., or if the state has diligently
pursued
the
defendant,
then
the
defendant’s
rights
violated unless the delay causes specific prejudice.
505 U.S. at 656.
are
not
Doggett,
The standard for due diligence “is constant:
whether the state took reasonable steps to locate the accused
based upon all of the information that it possessed.”
Snow v.
Super. Ct. (Jarrett), 183 Ariz. 320, 324, 903 P.2d 628, 632
(App. 1995).
8
¶17
Here, shortly after the confrontation call led Defendant
to believe that he had impregnated his 14-year-old cousin, the
Yuma police asked Defendant’s relatives to put him in touch with
them.
Soon thereafter the police were told that Defendant had
moved to San Diego.
While this information may have caused the
Yuma police to suspend their efforts, the U.S. Marshals Service
picked up the pursuit of Defendant, whom they reported was using
assumed
names.
At
one
Defendant in Nevada.
point
marshals
attempted
to
arrest
In 2007 Defendant was located in Texas,
and in 2008 he was arrested and extradited to Arizona.
¶18
The
trial
circumstances,”
court
the
concluded
state
had
that
exercised
“under
due
the
facts
diligence.
and
We
review that conclusion with considerable deference, Doggett, 505
U.S. at 652, because “[i]t is not the function of the reviewing
court
to
second-guess
what
might
have
been
done
officers in performing their investigative functions.”
by
police
State v.
Gutierrez, 121 Ariz. 176, 180, 589 P.2d 50, 54 (App. 1978).
¶19
The evidence in the record supports a determination that
the state took reasonable steps to apprehend Defendant based on
the
information
it
possessed,
located in Texas in 2007.
at
least
until
Defendant
was
See, e.g., Corona-Verbera, 509 F.3d
at 1115 (putting defendant’s name in national crime database
constituted
diligence).
The
evidence
also
suggests
that
Defendant, by absenting himself from Arizona and living under
9
assumed names, has considerable responsibility for the delay,
even if he was unaware of his indictment.
See Gutierrez, 121
Ariz. at 180, 589 P.2d at 54 (where police sought the defendant
through his relatives, the court assumed “that the reason for
the failure of the deputies to locate [defendant] . . . was not
from
any
lack
of
diligence
on
their
part
but
through
the
hindrance of appellant or his relatives”); Humble, 179 Ariz. at
413, 880 P.2d at 633 (if state has been diligent, a delay caused
by defendant’s actions is attributable to defendant, even absent
a showing of willful avoidance of prosecution).
On this record,
we agree with the trial court that the state pursued Defendant
with due diligence between the indictment and January 2008.
¶20
Defendant
also
contends
that
the
state
was
negligent
between January 2008, when they were notified of Defendant’s
presence in El Paso, and November 2008, when he was arrested.
The state offers no evidence to rebut this allegation.
For
purposes of our analysis, we will assume without deciding that
the state was negligent during this period and analyze this
period separately.
See State v. Burkett, 179 Ariz. 109, 115,
876 P.2d 1144, 1150 (App. 1993) (analyzing delay that might be
attributable to the state separately).
II. PREJUDICE TO DEFENDANT
¶21
Case law addressing the Sixth Amendment right to a speedy
trial recognizes three kinds of prejudice that can result from
10
delay: infringements on liberty arising from formal accusation,
anxiety engendered by public accusation, and impairment of the
accused’s ability to put on a defense at trial.
v. Marion, 404 U.S. 307, 320 (1971).
United States
Defendant does not suggest
that his liberty was infringed by the indictment before his
arrest in November 2008, or that his knowledge of the indictment
caused him anxiety.
Therefore we need only address whether his
ability to put on a defense at trial was impaired.
¶22
Defendant contended below that the delay caused specific
prejudice because surveillance tapes from the stores he visited
are no longer available, the memories of witnesses at those
locations have degraded over time, and that the records of when
his wife was working at the restaurant he visited no longer
exist.
On
appeal,
instead
arguing
Defendant
that
the
has
abandoned
seven-year
these
delay
arguments,
alone
is
so
prejudicial as to require dismissal.
¶23
We disagree.
“[D]elay is a two-edged sword.
It is the
Government that bears the burden of proving its case beyond a
reasonable doubt.
The passage of time may make it difficult or
impossible for the Government to carry this burden.”
States v. Loud Hawk, 474 U.S. 302, 315 (1986).
United
Therefore, the
prejudice arising from excessive delays “cannot alone carry a
Sixth
Amendment
claim
without
regard
to
the
other
Barker
criteria, it is part of the mix of relevant facts, and its
11
importance increases with the length of the delay.”
Doggett,
505 U.S. at 655-56 (internal citation omitted).
¶24
For the period before January 2008, the state acted with
due diligence -- especially in view of Defendant's concealment
of
his
specific
whereabouts
prejudice
--
and
arose;
Defendant
has
not
shown
therefore
Defendant’s
speedy trial was not violated during that time.
that
right
any
to
a
Doggett, 505
U.S. at 656.
As to the 11-month delay after January 2008, even
if
was
the
state
insufficient
to
negligent
obviate
the
during
need
this
to
time,
show
the
delay
prejudice.
was
See
McCutcheon v. Super. Ct. (Meehan), 150 Ariz. 312, 316, 723 P.2d
661, 665 (1986) (“The sixth amendment right to a speedy trial
arises when a person becomes accused. . . . by either formal
indictment, information, or actual restraint imposed by arrest
or holding to answer.”).
See also State v. Wassenaar, 215 Ariz.
565, 572, ¶ 20, 161 P.3d 608, 615 (App. 2007) (no violation of
speedy-trial right where no prejudice shown, even if one-year
delay was assumed to be improper).
The record here shows that
no
during
prejudice
to
Defendant
arose
this
time.
The
videotapes and records Defendant points to had been destroyed
years before, and Defendant offers no reason to believe that
witnesses were any less available or any less reliable after six
years than they were after five.
12
Therefore his right to a
speedy trial was not violated by any delay that occurred after
January 2008.
CONCLUSION
¶25
We
conclude
that
Defendant’s
right
to
a
speedy
trial
under the Sixth Amendment to the United States Constitution was
not violated before or after the state learned of his location
in January 2008.
We therefore affirm.
/s/
___________________________________
PETER B. SWANN, Presiding Judge
CONCURRING:
/s/
____________________________________
Daniel A. Barker, Judge
/s/
____________________________________
Patricia K. Norris, Judge
13
