by Eric Mullens
WALSENBURG — Roberto Lopez appeared in district court in Walsenburg Tuesday and through his attorney, deputy state public defender Pat McCarville, said he had elected to proceed to a jury trial on a second degree murder charge.
A class four felony manslaughter count had been offered by the prosecution last week.
Appearing for the prosecution on Tuesday was Assistant District Attorney Andrew Hall and his boss, Third Judicial District Attorney Frank Ruybalid.
In addition to announcing his client’s intention to take the matter to trial, McCarville asked District Judge Claude Appel to impose sanctions on the DA’s office for a number of discovery and time limit issues, including the failure of the prosecutor to turn over an evidence list to the defense, a chain of custody question and status of blood / DNA evidence that may or may not have been destroyed during testing.
Hall argued against the sanctions saying, neither side had turned over evidence lists to one another and he had learned from Ruybalid the blood evidence had not been destroyed and was in a re-testable condition and in the custody of the Colorado Bureau of Investigation.
Judge Appel did not rule on the sanction issue during the October 29 hearing.
A prior Nov. 18, 2013 trial date was dismissed and a new date of Jan. 6, 2014 was set. The trial is set for five days with an option of extention to eight days. McCarville said he expected a lengthy Voir dire (individual questioning and cross examination of potential jurors) during the selection process.
Two additional pre-trial hearings were also set in the case; a motions hearing for Thursday, November 14 from 10:30 am until noon, and an omnibus hearing set for 1:30 pm Monday, December 16.
Ruybalid has been under investigation for non-compliance issues regarding evidence in other cases and recently submitted answers to the state supreme court office looking into those allegations.
Published reports last week said, Ruybalid, through his attorney, filed a 52-page answer to the Colorado Attorney Regulation Counsel’s 67-page complaint it filed in August, following its investigation of misconduct allegations dating back to 2010.
The complaint alleges misconduct in 15 criminal cases handled by Ruybalid or attorneys under his supervision as district attorney.
Some of the allegations include failure to disclose evidence that could favor a defendant in a timely manner; appointments of attorneys in his office who had no felony case experience; not following a court order to provide results of forensic tests to defense counsel; repeated violations of state court rules requiring prosecutors to turn over evidence that may favor a defendant, and repeatedly disobeyed orders from judges in both Trinidad and Walsenburg.
None of the allegations in that complaint involve the Lopez case.
Ruybalid could face a trial before the Colorado Supreme Court’s judge who handles attorney disciplinary cases.
Lopez has been in custody since Jan. 7, 2013, the day after he allegedly stabbed to death Eraclio Lopez-Lopez during an argument or altercation at the home he, the victim, and other men shared in La Veta. Lopez was arrested in Walsenburg by city police after he was identified at a local restaurant.
Lopez, a Mexican national, remains in custody at the Huerfano County Jail on a no-bond hold from US Immigration and Customs Enforcement, and in lieu of $100,000 bond on the class two felony charge of second degree murder.
Witness availability has been a factor for the prosecution, as all the men who shared a mobile home in La Veta where the alleged crime took place, are not legal residents of the United States. Judge Appel asked Hall directly if his witnesses were going to be available for trial. Hall said a plane ticket for at least one of his witnesses, Venhur Hernandez, has been purchased and the date could be changed to meet the new trail schedule.
Gary M. Vezzani was elected Walsenburg’s mayor in Tuesday’s special mayoral election/recall vote. Preliminary results announced Tuesday night show that both Nick Vigil in Ward