Cardenas v. State, 89-274

• Decision Date: 23 May 1991
• Docket Number: No. 89-274,89-274
• Citation: 811 P.2d 989
• Parties: Thomas J. CARDENAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 989

811 P.2d 989

Thomas J. CARDENAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-274.

Supreme Court of Wyoming.

May 23, 1991.

Rehearing Denied June 17, 1991.

Leonard Munker, State Public Defender and Gerald M. Gallivan, Wyoming Defender Aid Program, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, and Dennis C. Cook, Sr. Asst. Attys. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

OPINION

MACY, Justice.

Appellant Thomas Cardenas appeals from his convictions for attempted first-degree sexual assault and aggravated assault and battery.

We affirm.

Appellant raises the following issues:

I. Whether due process, confrontation of witnesses, underlying values of the hearsay rule and fundamental fairness are violated by the admission at trial of prior testimony of the victim given at a preliminary hearing where:

1) Prior case law has restricted the motive and opportunity for cross[-]examination at a preliminary hearing.

2) Applicable law has limited the time and the opportunity for investigation and discovery before the preliminary hearing.

3) There was no indication that the witness would be unavailable for trial removing any incentive for a th[o]rough cross-examination.

4) Counsel for defendant at trial was not counsel at the preliminary.

5) The defendant is effectively prevented from testifying by the admissibility of a prior conviction?

II. Did the trial court err in failing to grant a continuance upon motion of defense counsel where:

1) Jury trial was set for Monday and counsel was advised the previous Wednesday that the victim had died and was not available to testify or for cross-examination;

2) The defense counsel immediately (on Thursday) filed for such a continuance, and the trial court set the matter for hearing on Friday afternoon and summarily denied said continuance; and

3) The defendant was denied effective assistance of counsel, because of a lack of a reasonable time to prepare for the defense of a very serious case?

III. Did the court below err in not granting a directed verdict on the issue of abandonment and in instructing the jury on that defense?

IV. Is the defendant's conviction for aggravated assault reversible under a plain error analysis where the evidence is conflicting and the jury was not properly instructed on the elements of the crime?

On the evening of April 12, 1989, the victim and Dorothy Tripp arrived at the victim's apartment to find Appellant in her kitchen. Appellant lived across the hall in another apartment, and he and the victim had been friends for several months. The victim and Appellant began to argue vehemently, and the victim asked Appellant to leave her apartment. After Appellant refused to leave, the victim attempted to call the police. Appellant retrieved a knife from the kitchen and tried to cut the telephone cord. The victim dropped the telephone, and Appellant grabbed her and placed the knife on her throat. At that point, Tripp ran out of the apartment and called the police. The police arrived at the victim's apartment and knocked on the door. When they did not get a response, they went into the apartment, which appeared to be the scene of a struggle, and found the victim and Appellant in the bathroom. The victim was sitting on the floor in her underwear. Appellant was straddling the victim's legs, and his pants were unfastened and partially pulled down.

At Appellant's preliminary hearing, the victim testified, inter alia, about the following events which occurred after Tripp left the apartment. Appellant continued to hold the knife to the victim's throat and told her that he was going to kill her. Next, he locked the back door to the apartment, and he threw the victim against the wall. The two struggled for several minutes as Appellant pulled the victim around the apartment by her hair and struck her with his fists. Appellant demanded that the victim take off her clothes, and he hit her and threatened to kill her when she refused. Finally, the victim disrobed, except for her underwear, and Appellant began to pull her into a bedroom. The victim broke free and locked herself in the bathroom. Appellant kicked in the bathroom door and pulled down his pants and underwear. The victim stated that Appellant grabbed her head, pushed it towards his penis, and said, "[D]o it or else." After the victim resisted, Appellant pulled up his pants, hugged the victim, and apologized to her. At that point, the door burst open, and the police apprehended Appellant.

The police arrested Appellant and charged him with attempted first-degree sexual assault in violation of Wyo.Stat. §§ 6-1-301 and 6-2-302 (1988), aggravated assault and battery in violation of Wyo.Stat. § 6-2-502 (1988) ¹ and interference with a police officer in violation of Wyo.Stat. § 6-5-204 (1988). ² Appellant pleaded not guilty to all four charges. On July 6, 1989, the district court granted Appellant's counsel's motion to withdraw. Appellant's new counsel entered appearances on July 13, 1989, and the court set the trial for August 7, 1989.

On July 28, 1989, the victim died from injuries which she suffered in an automobile accident. Appellant subsequently filed a motion to bar the use at trial of the victim's preliminary hearing testimony and a motion for a continuance. After the district court held a motion hearing, it denied both of Appellant's motions.

A jury convicted Appellant for committing attempted first-degree sexual assault, aggravated assault and battery, and interference with a police officer. The district court sentenced him to confinement in the Wyoming State Penitentiary for a minimum of forty-five years and a maximum of fifty years for attempted first-degree sexual assault, a minimum of eight years and a maximum of ten years for aggravated assault and battery, and a minimum of five years and a maximum of six years for interference with a police officer. The court ordered the sentences for attempted first-degree sexual assault and aggravated assault and battery to run concurrently and the sentence for interference with a police officer to run consecutively to the other two sentences.

Admissibility of the Preliminary Hearing Testimony

Appellant's first issue challenges the admissibility of the victim's preliminary hearing testimony. W.R.E. 804(b)(1) provides:

Hearsay exceptions.--The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony.--Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination [.]

(Emphasis added.) Three requirements must be satisfied pursuant to W.R.E. 804(b)(1) before a court can allow the admission of former testimony:

First, the declarant must be unavailable at trial. * * * Second, the former testimony sought to be admitted must have been given by the witness while testifying in another hearing or deposition. * * * Third, the party against whom the statement is offered must have had "an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination" at the prior hearing.

Rodriguez v. State, 711 P.2d 410, 413 (Wyo.1985) (quoting W.R.E. 804(b)(1)). Appellant contends that he did not have an opportunity and similar motive to develop the victim's cross-examination at the preliminary hearing.

In Rodriguez, this Court held that the admissibility of preliminary hearing testimony at trial would depend upon a case-by-case analysis. In that case, the defendant was accused of breaking into the home of a seventy-nine-year-old woman, tying her to a chair, and robbing her at knife point. When the police took her statement and when the police showed her a photo array, the victim identified the defendant as the man who robbed her. The victim again identified the defendant at the preliminary hearing as being the man who had robbed her. Her preliminary hearing testimony was challenged in a fairly extensive cross-examination. The victim died five days before the trial, at which her preliminary hearing testimony was read to the jury. Id. at 412. We held that the district court did not err under W.R.E. 804(b)(1) by allowing the admission of the preliminary hearing testimony because the defendant had an opportunity to cross-examine the victim, because the motive of discrediting the victim's identification was the same in both the preliminary hearing and the trial, and because the defendant subjected the victim to a fairly extensive cross-examination on the issue of her identification. Id. at 414.

In this case, Appellant had the opportunity to cross-examine the victim. After a direct examination by the prosecuting attorney, Appellant's counsel asked the victim about her relationship with Appellant, about the events leading up to the alleged assaults, about the amount of alcohol she drank before the alleged assaults, about the possibility that she had sold drugs, and about the kind of clothes she wore when she was around Appellant. The district court did not limit the cross-examination.

Next, we must determine if Appellant's motive to cross-examine the victim at the preliminary hearing was similar to his motive to cross-examine her at the trial. Appellant's cross-examination of the victim at the preliminary hearing indicates that he was attempting to analyze and discount her version of the alleged assaults and her credibility in general. From his appellate brief, we discern that Appellant's primary motive to cross-examine the victim at trial was to test her credibility in front of the jury. Despite the...