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When victims are silent …

Posted: Thursday, Jun 13th, 2013

Courier staff writer

ALAMOSA — It’s hard to prosecute defendants in criminal cases if their alleged victims are uncooperative or unwilling to come forward.

In the last week alone, the alleged victims in at least three unrelated matters have stymied the district attorney’s office in its efforts to strengthen the cases against the accused.

Take the case of Nazzreth Deluna, for example. In February, the Colorado Springs man pleaded guilty to felony menacing and misdemeanor third-degree assault.

In exchange, the district attorney’s office dismissed a more serious felony charge of second-degree assault, and it also asked the court to impose a deferred sentence, as opposed to time in jail or prison.

At the time Deluna entered his guilty plea, his attorney told the court that the prosecution would have been able to prove Deluna and a co-defendant engaged in a June 24, 2012 attack on two men. In addition, the prosecution could have shown that Deluna caused serious bodily injury to one man’s face, Deputy Public Defender Marcie Goldstein said Feb. 19.

Deluna was scheduled to be sentenced on June 5. But when the public defender’s office learned that an alleged victim was uncooperative with prosecutors, it withdrew his guilty plea and asked 12th Judicial District Judge Pattie Swift to dismiss the entire case against him.

“If (the alleged victim) wasn’t going to testify at all, I think it does negate the guilt of Mr. Deluna in this case,” Goldstein told the court.

Deputy District Attorney Mark Loy said his office informed the public defender in February the man was unwilling to testify against Deluna.

“They knew he didn’t want to be a ‘snitch,’” Loy said June 5.

Regardless of when his office made that disclosure, Loy said his office cannot prove that serious bodily injury occurred as long as the alleged victim refuses to cooperate.

“There’s certainly no way we’re getting a felony conviction out of (this case),” he said.

The judge agreed to issue a written decision on Goldstein’s requests by July 3 at the latest.

In the meantime, 12th Judicial District Judge Michael Gonzales is dealing with similar issues.

On June 11, Deputy District Attorney Lara Reincke informed Judge Gonzales that two alleged victims in an unrelated October 2012 assault case are also being uncooperative.

Prosecutors originally charged Joseph Earl Bailon with first-degree assault and second-degree assault, as well as misdemeanor disorderly conduct.

But as a result of the alleged victims’ unwillingness to cooperate, the district attorney’s office will likely extend some sort of plea offer to the defendant, Reincke said.

It had to dismiss the case against another defendant altogether.

Ryan Antonio Lopez still faces charges in connection with the alleged May 4 stabbing of Amber Garcia. But Reincke informed Judge Gonzales that her office couldn’t go forward with an unrelated case against the 30-year-old man, since it could not reach the alleged victim, despite repeated attempts to contact that person.

Judge Gonzales consequently dismissed that case and vacated a pending jury trial date.

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