Martinez v. State

Decision Date22 May 1980
Docket NumberNo. 5212,5212
Citation611 P.2d 831
PartiesSammy Dean MARTINEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Richard H. Honaker, Public Defender, Cheyenne, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Martin McClain, Student Intern, Laramie (argued), on brief for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Berry F. Laws III, Legal Intern, Cheyenne (argued), on brief, for appellee.


ROONEY, Justice.

A jury found defendant-appellant guilty of violating § 31-11-102, W.S.1977, unauthorized use of a motor vehicle. He was sentenced to imprisonment for not less than We affirm.

two years and not more than four years. He appeals from the judgment and sentence, alleging the commission of error in allowing the use of a deposition in lieu of the appearance of the witness at the trial.

Two police officers answered a disturbance call at the Lakeway Bar in Green River in the early morning hours. They left their police car in the bar parking lot with the motor running. When they returned to the parking lot a few minutes later, the car was gone. Several hours later, it was found abandoned in a ditch.

Trial testimony reflected that Pam Terwey and two companions left the bar at about the time the police arrived. The two companions returned to the bar to talk to the police, but Pam Terwey remained in the parking lot. Appellant left the bar after the police arrived; and twenty to thirty seconds later, loud revving noises of a car engine were heard, and noises of tires grabbing the pavement were heard. No one else left the bar during the pertinent time. The two police officers and one of Pam Terwey's companions saw no other person in the vicinity of the bar at the time.

The issues on appeal concern the deposition testimony of Pam Terwey. A few hours after she and her two companions left the bar, they were stopped at a road block. She then stated that she had seen appellant take the police car. On July 10, 1979, the prosecution moved the court for an order to take her deposition for use at the trial in lieu of her appearance inasmuch as she had recently sustained a skull fracture and other injuries and because her doctor had advised that she not be brought to court for at least six weeks. The trial court granted the motion and ordered the deposition to be taken at the residence of the witness. The deposition was taken on July 13, 1979, but it was taken at the courthouse.

In her deposition, the witness testified that the only advice given her by her doctor was "not to run around, * * * not to walk around, stay at home." With reference to the testimony expected by the prosecution to the effect that she had seen appellant take the car, she acknowledged that she had so told the police but changed her statement and said that she did not see him do so. The pertinent deposed testimony was as follows:

On direct examination:

"Q. After this happened, after he passed you what happened then?

"A. I don't know. I didn't see. I was facing the other way.

"Q. Did you notice the police car missing?

"A. Yeah, after about after I turned around about three minutes later.

"Q. Had anyone else come out of the Lakeway at that time?

"A. No.

"Q. Had you seen anyone else in the area?

"A. No.

"Q. Did you talk to Detective Jaramillo that night?

"A. Yeah.

"Q. What did you tell him?

"A. I told him I don't know.

"Q. Do you remember what you told him, approximately?

"A. No, not really.

"Q. Was that conversation recorded?

"A. Yeah.

"Q. Did Detective Jaramillo ask you to make an identification of an individual at the sheriff's office?

"A. Yeah.

"Q. How did that take place?

"A. What do you mean how it took place?

"Q. Where were you and where was that individual and where was Detective Jaramillo?

"A. We were in the sheriff's office, the sheriff's thing over there.

"Q. How close were you to the individual?

"A. When?

"Q. When you identified him?

"A. I don't know.

"Q. Was he standing in front of you?

"A. Yeah.

"Q. Did you identify him?

"A. Yeah.

"Q. Was that individual the same one that you saw take the car?

"A. I didn't see him take the car, but it was the same one I seen at the Lakeway.

"Q. That passed you on the corner?

"A. Yeah.

"Q. Is this the man you saw that night (walking over to an individual sitting in the room.)

"A. It's the one I seen in the bar."

On cross-examination:

"Q. Okay. What happened next? You stated that the police officers are in there talking and you are outside and Sam came out?

"A. Yeah.

"Q. Okay. What happened then?

"A. Then he came out and he walked past, and I was facing this way (indicating) towards the door.

"Q. And he walked past you?

"A. Yeah.

"Q. Did you hear something leave?

"A. No.

"Q. And you are within how many feet? I think that is about fifteen feet.

"A. Probably about five feet.

"Q. Of the car?

"A. Oh, it was probably about two feet away from me.

"Q. And you don't hear the car leaving at that time?

"A. No.

"Q. What did you do then?

"A. After about three minutes I went back in and then we left.

"Q. What happened when you talked to Mr. Jaramillo?

"A. He just asked--

"Q. What did he ask you?

"A. About what happened there and--I don't know.

"Q. Do you remember what you told him that night?

"A. Yeah.

"Q. Is it any different than what you have said today?

"A. Yeah.

"Q. In what respect?

"A. I don't know.

"Q. Well, you know it is very important not only to the defendant but also to the State. Do you know what the differences were in the story?

"A. Yeah.

"Q. What are they?

"A. I told him that I seen him.

"Q. That you had seen whom?

"A. I seen him take the car.

"Q. But you are saying here now that you didn't see him?

"A. Yes.

"Q. Okay. Were you telling the truth then or are you telling the truth now?

"A. I am telling the truth now.

"Q. You never actually saw Sammy take the car?

"A. No.

"Q. You had your back to the--

"A. I was facing this way (indicating).

"Q. You were walking away. You had your back to him?

"A. Yeah.

"Q. You didn't hear a car leave?

"A. No."

Appellant then filed a motion for an order denying the use of the deposition at trial. He argued that a showing had not been made of the necessity for using the deposition, and that he was entitled to personal confrontation and examination of the witness before the judge and jury. The court did not rule on the motion until it allowed its use at the trial which was held on July 17, 1979.

However, before the deposition was offered as evidence at the trial, Officer Lance Barr testified that he had a conversation with Pam Terwey and two other bar patrons at a roadblock which had been set up. He testified for the prosecution in part as follows:

"Q. What did you ask them?

"MR. BATH: Your Honor, I object as he's asking for hearsay.

"THE COURT: He may answer the question when he asked them.

"Q. (By Mr. Reese) What in fact did you ask those three individuals?

"A. I asked if they knew who took the police car.

"Q. And what did you do as a result of that conversation?

"A. I got on the radio to Sergeant Carter and told him what I'd heard.

"Q. And what did you tell him to do?

"A. I told him to pick up and hold Sammy Martinez.

"Q. What else did you do as a result of that conversation?

"A. I asked the three individuals if they would come to the Sheriff's Office and talk to a Detective and give a statement."

On cross-examination:

"Q. Did any of the three people indicate to you they had seen Sammy Martinez drive away with that car?

"A. Yes, they did.

"Q. Which one?

"A. Pam, the girl.

"Q. You are aware, are you not, that I took Pam's deposition--at least the State took her deposition--and I was present?

"A. That's what I heard.

"Q. That we have her deposition, a sworn statement, under oath, cross examination, and all that, and she states that she did not see anyone drive that car away?"

At this point of the trial, appellant apparently had decided that it was favorable to him to have placed before the jury the deposition recantation by Pam Terwey of her statement that she had seen appellant take the car. Nonetheless, during the following redirect examination of Officer Barr, he objected as indicated:

"Q. When you talked to Pam Terwey at the road block, what did she say to you?

"MR. NORDSTROM: We object, Your Honor.

"MR. BATH: Yes, we do, Your Honor. It is hearsay and particularly in light of the fact that they don't intend to call Pam Terwey here in person to this trial. They planned to use her deposition at trial, but they don't plan to call her.

"MR. JAMES: Your Honor, they brought that up and asked what Miss Terwey said to the officers here. I think we have got the right to cross examine and make clear what she did say and also res gestae in exception to the Hearsay Rule. It happened right around the time that the car was actually taken, so that Pam Terwey's statement made at that time would probably be more reliable than they were under deposition.

"MR. BATH: We are put in the position that if they don't intend to call her to trial, to not have an opportunity to cross examine, because the deposition was taken Friday which has no indication of what we're talking about here today.

"THE COURT: The fact remains that the Defense brought out what she told him before in their direct examination.

"MR. BATH: That's right, to protect herself is the same reason as our objection.

"THE COURT: Well, if you brought it out, I think they have a right to persue (sic) it. You may continue."

Barr then testified that Pam Terwey told him she had seen appellant "come out of the bar, get in the car and drive off," and that she "identified the clothes that he was wearing."

One of Pam Terwey's two companions that night, Charles Leasor, testified without objection that Wayne (the other companion) told him that "Sammy had taken the car," and that Pam Terwey also told him that "Sam had taken the car."

Although at that...

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