Martinez v. State
| Decision Date | 21 July 1959 |
| Docket Number | No. 2831,2831 |
| Parties | Joe Cruz MARTINEZ, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
L. A. Crofts and W. A. Smith, Lander, for appellant.
Thomas O. Miller, former Atty. Gen., Maxwell E. Osborn, former Deputy Atty. Gen., Norman B. Gray, Atty. Gen., W. M. Haight, Asst. Atty. Gen., and G. L. Spence, County and Pros. Atty., of Fremont County, Lander, for appellee.
Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.
Joe Cruz Martinez, charged with first degree murder, was tried by a Fremont County jury, found guilty without qualification, was sentenced to die in the gas chamber, and has now appealed to this court.
The pertinent facts of the homicide were as follows: On the morning of January 1, 1957, sometime after eight o'clock, the defendant, who was employed on the Barquin ranch, came to Mike Barquin and reported that Ramon Gonzales, another employee of the ranch, had been shot. Barquin in company with Martinez went to the bunk house, found Gonzales lying on his bed with a bullet hole in his skull but still breathing. Barquin immediately went for the authorities who upon their arrival found Gonzales dead. Subsequent autopsy disclosed the head wound to be the cause of death.
Martinez' story to Barquin and later to the sheriff was that on the night before, New Year's Eve, he and Gonzales had been in various places in the town of Lander and thereabouts, drinking and carousing, had a fight with some Indians who had later followed them out of town and had run them off the road with the car; Martinez and Gonzales had speeded up and returned to the bunk house of the Barquin ranch; afterward the Indians drove up in the car whereupon Martinez crawled under his bed; the Indians came into the bunk house, started an argument with Gonzales, and shot him.
The sheriff and other officers made an examination at the scene of the death, took pictures, and then proceeded to make an investigation in an effort to determine the actual occurrences. In so doing they found that Gonzales had been shot through the head with a small caliber rifle (later determined to be a .22) and also found that a .22 caliber rifle was missing from the ranch.
The sheriff almost immediately suspected Martinez of the crime and after completing preliminary check at the ranch asked defendant if he would go to Lander to assist with the investigation to discover the persons who had committed the crime. Martinez readily agreed and remained with the sheriff through that day and the next, staying the night at the jail. The State makes a point of the fact that he was not then under formal arrest.
The following day the missing rifle was discovered hidden under a granary at the ranch. This was later proved to be the weapon which fired the fatal shot. On the night of January 2 about 9:15 Martinez, having been told that the rifle had been found and that it bore his fingerprints, made a signed confession which was admitted in evidence at the trial over defendant's objections. This confession, the basis for the conviction of first degree murder, related the activities in the early part of the evening of December 31 as being substantially the same as those previously recounted. From the point that the two started back to the Barquin ranch, defendant's story was entirely changed. He said that on the return trip he and Gonzales fell to quarreling about their evening's lack of success with women, whereupon deceased criticized Martinez, calling him a foul name, opening the car door, and suggesting that they fight. Defendant said he did not get out of the car because he was half asleep and sick with all the drinking he had done. Instead he finally convinced Gonzales to get back in the car and they went on home. Defendant lay down on the bed and Gonzales, after acting undecided, finally lay down. Martinez then turned off the light and wished Gonzales happy dreams, whereupon Gonzales called him the foul name he had previously used, thereby indicating that he was still angry. Defendant said he thought Gonzales would get up and cut his throat off; that he (defendant) wouldn't take any chances; and that he got up, slipped on his shoes and trousers, walked out and got the gun from the porch of a nearby house, checked it to see if it was loaded, returned, and shot deceased.
In their argument for reversal, defendant's counsel insist that there was error on the part of the court and of the prosecuting official in certain aspects of the trial. They also contend that, although they made no objection at the trial regarding the instructions given or refused, the court instructed improperly. Their principal contention, however, seems to be that there was insufficient evidence to support the verdict and judgment of first degree murder, the confession being both inadmissible and insufficient, even if admitted, to show premeditated malice--there being no other evidence on which the jury's finding could be legally based. We shall consider these arguments in the order named.
One error charged by defendant's counsel was the refusal of the trial court to exclude witnesses from the courtroom until after they had been sworn, the swearing having taken place immediately following the prosecution's opening statement. No authorities are cited to substantiate the claim of error which seems to be founded in the fact that the witnesses, by hearing the opening statement, would know the prosecution's theory of the case prior to the time they were called upon to testify. They point to the evidence regarding defendant's sobriety and say that the testimony was just 'too pat' to have been spontaneous and uninfluenced. Counsel admit that the exclusion of witnesses is a matter within the discretion of the trial court, and they do not insist that such discretion was abused. We think that whenever exclusion of witnesses is indicated, the better practice is to make the exclusion at the beginning of the trial. However, defendant's arguments fail to convince us either that the court's discretion was abused or that defendant was prejudiced.
It is argued that the court erred in permitting Mike Barquin to testify 'He [defendant] was not drunk' in response to the question, 'Do you have an opinion whether he was drunk or not?' Although a lay witness may be allowed to testify as to his opinion on the sobriety of an individual if he states the facts upon which the opinion is based, 1 the witness' answer in the instant situation was unresponsive and therefore should have been stricken upon the request of defendant's counsel. Nevertheless, the facts regarding defendant's behavior had been recited previously by Barquin; and even without the expression of his opinion, the jury was informed of his reaction as to defendant's behavior. Accordingly, there would seem to have been no prejudicial error.
It is insisted that the court erred in overruling an objection to a question asked defendant in which there was an allusion to a discrepancy between his testimony at the trial and at the preliminary hearing. The contention that the ruling was improper is not supported by a reason. A witness may properly be cross-examined regarding both judicial and extrajudicial statements which he has made on material matters. State v. McCarroll, 123 Or. 173, 261 P. 411; McCann v. State, 20 Ariz. 489, 182 P. 96; People v. Walker, 140 Cal. 153, 73 P. 831; People v. Pete, 123 Cal. 373, 55 P. 993; People v. Popovich, 295 Ill. 491, 129 N.E. 161; People v. Biloche, 414 Ill. 504, 112 N.E.2d 162, certiorari denied 346 U.S. 878, 74 S.Ct. 131, 98 L.Ed. 385; 348 U.S. 846, 75 S.Ct. 69, 99 L.Ed. 667; Morris v. State, 100 Fla. 850, 130 So. 582; Shaw v. State, 136 Miss. 1, 100 So. 519; 3 Wharton's Criminal Evidence, 12 ed., §§ 891, 943.
Error is charged because the prosecuting official in cross-examination undertook to show inconsistencies between defendant's testimony and his prior conversations in the jail cell, tape recorded without his knowledge. The jury did not hear the recording which was played to defendant in the presence of the court; however, defendant before the jury was repeatedly confronted with quotations purporting to come from his recorded...
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