BISBEE — Moments before a man charged with killing a bicyclist on State Route 80 at the Lavender Pit was supposed to enter a plea in the matter on Monday — the case is more than a year old — the defendant told his court-appointed attorney that he wanted to hire someone else, a decision that frustrated the judge and prompted the prosecutor to take the offer off the table.
“This has gone on long enough,” Cochise County Deputy Attorney Raymond Haight told Cochise County Superior Judge Laura Cardinal at a hearing Monday where 24-year-old Noe Smith was supposed to enter a change of plea in a case of reckless manslaughter and other offenses.
The judge, sharing Haight’s frustration with yet another delay, asked Smith what the problem was.
“I don’t know how many lawyers we’ve gone through to get you the assistance that you need,” Cardinal said to Smith on Monday afternoon.
Squirming in his seat next to his attorney Joe Heinzl, Smith said he never understood what the plea agreements have entailed and said his attorney never answered his questions. He then said he wanted to hire private attorney Rafael Malanga.
Heinzl is in private practice, but is on a list of attorneys used by the court’s Indigent Defense Coordinator if there is a conflict with any of the county’s three defense divisions.
Bisbee police said Smith struck cyclist Sergio Lalli on the afternoon of June 11, 2021, as Lalli rode his bicycle around the Lavender Pit on SR 80 near mile post 342.5.
Lalli, a fixture around Old Bisbee who was always pedaling around town, was heading east. Smith, also heading east, struck Lalli with the front right end of his vehicle and kept going, police said.
At least two witnesses told police they saw Smith hit Lalli and drive off, a police report shows. The report also says Smith confessed to striking the older man.
Investigators said Smith abandoned his car about a mile east of the scene and bolted. A relative of the suspect later gave investigators Smith’s identity and they arrested him at his Douglas residence.
The defendant’s mother, Rosalva Smith, said Smith surrendered within an hour or so of hitting Lalli.
Rosalva Smith also said Monday after the hearing that her son had no intention of signing the plea agreement that Heinzl held in his hand in a manila folder during the court proceeding.
The case has suffered a series of setbacks because Smith and other attorneys he’s had could not reach an agreement on the direction the case should take. Earlier this year there was a settlement conference, but that collapsed after a few hours and Smith — who was represented at the time by David Wilkison — said he wanted a different attorney. There had been another lawyer before Wilkison as well.
In early June, Cardinal had ordered the county’s Indigent Defense Coordinator to appoint another lawyer for Smith, but at a hearing in late July, Smith sat in the courtroom with no defense attorney, an issue that angered Cardinal and prompted the judge to set a hearing for the Indigent Defense Coordinator’s office to explain why it should not be held in contempt of court for failing to appoint a lawyer for the defendant.
Heinzl was then chosen to represent Smith.
In an effort to possibly save the second plea agreement that Smith was supposed to sign Monday, Cardinal explained the offer and asked the defendant if he was rejecting it. Smith said he wasn’t, but wanted to discuss it with a new lawyer.
At that point, Haight said the plea offer would be withdrawn.
The charges Smith faces in the Lalli case include reckless manslaughter, hit and run/failed to give information, and aggravated assault with a deadly weapon. When the 2021 accident occurred, Smith was already on probation for a 2016 case in which he was found guilty.
The plea agreement dashed on Monday, the second one for Smith, would have given him 15 years in prison to be served concurrently with the violation for his 2016 case, which was an attempted sale of marijuana incident. In the latter, prosecutors were offering three and a half years in prison. But Smith would have served just more than 12 years total, Cardinal said, because the agreement called for Smith to complete 85% of the higher sentence.
As a result of the situation in the courtroom Monday, Haight, who was filling in for prosecutor Michael Powell, asked Cardinal to set a violation hearing for the 2016 case. Smith violated his probation on that case when he became involved in the 2021 manslaughter incident.
In an email Tuesday, Powell explained that Smith never had a probation violation hearing for the 2016 case and is in the Cochise County Jail on both incidents.
A violation hearing has now been scheduled for Dec. 23 before Cardinal. That could be followed with scheduling for a trial, Powell said Tuesday.
Because Smith did not sign the plea agreement, he could face a stiffer sentence if he takes his chances at trial. If convicted by a jury, the sentence would be consecutive rather than concurrent on both incidents, Powell said.
“Because he has not resolved the two cases together as part of a plea, he will end up subject to 13-708(C), so the sentences will have to run consecutively between the probation case and manslaughter case,” Powell said. “Had he agreed to a plea, there was the ability to run them concurrently.”
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