State of Utah, v. Cruz

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Pedro Luis Cruz,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000416-CA

F I L E D
April 11, 2002 2002 UT App 99 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
D. Bruce Oliver, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee -----

Before Judges Billings, Greenwood, and Orme.
BILLINGS, Associate Presiding Judge:

Defendant argues that because he was acquitted of the sodomy charge in the first trial, the rape and sexual abuse charges were barred by double jeopardy. We agree with the State that this issue is inadequately briefed, see Smith v. Smith, 1999 UT App 370,¶8, 995 P.2d 14 (noting this court may disregard issues not properly briefed), and contrary to controlling authority. SeeState v. Musselman, 667 P.2d 1061, 1065 (Utah 1983) (stating retrial not barred by double jeopardy when the jury is unable to reach a verdict). Therefore, we decline to address this issue.(1)

Defendant's second argument is that his right to a speedy trial was violated. The right to a speedy trial is analyzed under the four factors enumerated in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), which are the "[l]ength 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 2192.

Under the first factor, there was a delay of almost two years between Defendant's surrender to police and the first trial,(2) which is substantial enough to trigger an inquiry. SeeState v. Woodland, 945 P.2d 665, 670 (Utah 1997).

Under the second factor, we inquire into the reason for the delay. In this case, Defendant caused most of the delays. "[W]hen [Defendant] acts to delay trial, he indicates his willingness to temporarily waive his right to a speedy trial. This is true whether or not the reason for the delay is meritorious." State v. Ossana, 739 P.2d 628, 631 (Utah 1987). Therefore, this factor militates against a speedy trial violation.

The third factor concerns Defendant's assertion of his right to a speedy trial. Because Defendant took approximately eighteen months to assert his right and was responsible for most delays following the assertion of his right, this factor indicates there was no violation of Defendant's right to a speedy trial. SeeState v. Snyder, 932 P.2d 120, 130 (Utah Ct. App. 1997) (holding no speedy trial violation when defendant first asserted right three months before scheduled trial).

Fourth, "and most importantly, Barker requires an inquiry into whether [Defendant] was prejudiced by the delay." Ossana, 739 P.2d at 631. In this case, there was little or no prejudice to Defendant. First, he was incarcerated for only six days after he first surrendered to the police and later was incarcerated for under a month when he violated the conditions of his release. This does not qualify as "oppressive pretrial incarceration." Second, while Defendant claims to have experienced anxiety, he delayed over 500 days before asserting his right to a speedy trial. Finally, there is no evidence that the delay impaired Defendant's defense. In sum, based on the Barker factors, we conclude that Defendant was not denied a speedy trial.

Defendant also argues that the jury polling violated his right to a trial by jury. Because Defendant did not preserve this issue, he must establish plain error. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). Defendant cites no authority for the proposition that the language used was in error.

Accordingly, we affirm.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge

----- WE CONCUR:
 
 

______________________________
Pamela T. Greenwood, Judge
 
 

______________________________
Gregory K. Orme, Judge

1. Defendant also mentions in a footnote that the evidence was insufficient to support his convictions. Again due to the inadequacy of the brief, we will not address this issue.

2. Defendant only challenges the delay before the first trial, so we do not address any delay occurring between the first and second trial.