Martinez v. State
Decision Date | 22 May 1980 |
Docket Number | No. 5212,5212 |
Citation | 611 P.2d 831 |
Parties | Sammy Dean MARTINEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming 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.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
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 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.
We affirm.
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:
On cross-examination:
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:
On cross-examination:
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:
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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