Martinez v. State
| Decision Date | 06 February 1967 |
| Docket Number | No. 662,662 |
| Citation | 423 P.2d 700 |
| Parties | Filipo MARTINEZ, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Alan Merson and John R. Strachan, Anchorage, for appellant.
Thomas E. Curran, Jr., Dist. Atty., and Robert N. Opland, Asst. Dist. Atty., Anchorage, for appellee.
Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.
A jury found appellant guilty on both counts of an indictment charging him with first degree murder and murder committed during an attempted rape.
All of the evidence was circumstantial. The principal point raised by appellant's court appointed counsel is that the evidence did not meet the standard required by this court in Davis v. State. 1 In Davis we held that where all of the evidence was circumstantial 'it was incumbent upon the state to produce evidence of circumstances which excluded every reasonable hypothesis except that of guilt'. This same point was argued by the appellant in Jennings v. State 2 and we explained in that opinion that the test laid down in Davis was the equivalent of the rule enunciated in Bush v. State 3 where we said:
On a motion for a judgment of acquittal the judge must take the view of the evidence and the inferences therefrom most favorable to the state. If he determines that fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt, then he must submit the case to the jury. (Footnotes omitted.)
We are of the opinion that the rule as enunciated in Bush v. State is more easily understood and applied than the form originally announced in Davis v. State. For this reason we shall hereafter employ the phraseology of Bush. Our most recent decision on this point, Allen v. State, 4 is to the same effect.
Appellant argues that the testimony of several prosecution witnesses that they observed scratches on appellant's face which they had not observed earlier in the day, and the testimony of Doris Walker that she had seen decedent join appellant and walk with him, were the only two threads of evidence linking appellant with the crime.
Appellee argues that the evidence clearly established that the crime of murder by manual strangulation was committed on Marsha Knighten, age 12, and summarizes the evidence linking appellant with the crime as follows: appellant was the last person seen with the victim at approximately 3:20 p. m. on March 30, 1965, walking in the direction of appellant's home. The testimony of Doris Walker was that she had seen appellant a couple of times before at Marsha Knighten's father's house; that Marsha had left her company as they were walking home from school together to secretly follow appellant to learn where he lived and that appellant had discovered her following him, whereupon Marsha joined him and walked with him in the direction of his home. Paula Malvo, who had been walking home from school behind Marsha Knighten and Doris Walker, testified that in the vicinity of Jim's Grocery she called to Marsha to walk home with her, but that Marsha walked away in the vicinity of 12th and Karluk Streets; that she then ran to East 13th and Juneau Streets expecting to see Marsha appear; that she waited about 5 minutes and when Marsha did not appear she went home. The house in which appellant roomed was located on the northeast corner of 12th and Juneau Streets. Marsha Knighten's body was found in a garbage can behind appellant's rooming house. A blood smear was found on the ironing board cover in the utility room and scuff marks were noted on the kitchen floor in the house. Stains resembling semen stains were found on appellant's bed sheet and semen stains were found on the victim's skirt and panties. The marks of a child-sized shoe were seen on appellant's bed sheet and on the wall near appellant's bed. Marsha Knighten's absence was noted at about 6:30 p. m. on March 30, 1965, and a search commenced. Medical testimony was to the effect that the condition of the body when examined was not inconsistent with the crime having been committed between 3:30 p. m. and 6:30 p. m. on March 30, 1965. Appellant gave inconsistent explanations of he origin of the scratch marks first observed on his face by witnesses at about 5 p. m. on March 30, 1965. Appellant's testimony that he had acquired the scratches in a fight on March 29, 1965, was directly contradicted by the testimony of Mitchell Walker, a barber, that appellant had no scratches on his face when he trimmed appellant's mustache and sideburns at about 2 p. m. on March 30, 1965.
We are of the opinion that the circumstantial evidence produced by the state satisfies the rule of Bush v. State, that is, that it was such that fair minded men in the exercise of reasonable judgment could differ on the question of whether appellant's guilt had been established beyond a reasonable doubt and that the trial court properly submitted the case to the jury. Therefore, the trial court did not err in denying appellant's motion for acquittal.
Appellant's second point is that his right to counsel under the sixth amendment and his right to the equal protection of the law under the 14th amendment to the United States Constitution were violated by the failure of the district magistrate 5 to appoint counsel for him at the moment of his arrest.
During the evening of March 30 an intensive search was conducted in and around appellant's residence. A garbage can, located where one containing the victim's body was later found, was examined by Alfred Knighten, the victim's father, at about 7 p. m. and again at about 10 p. m. in the presence of an officer. Appellant argues that because of these facts he was a prime suspect and that for all practical purposes when he was asked to and did accompany Officer Hibpshman to the police station for questioning at about 2:30 a. m. on March 31 he was under arrest. At about 4:30 a. m. on March 31 when Nancy Douglas observed the victim's school book under the garbage can lid on top of the garbage, she became suspicious and called the police. This resulted in the discovery of the body. Appellant was formally arrested immediately thereafter.
When questioned as to whether he had advised appellant of anything before taking him to the police station Officer Hibpshman replied:
Yes, sir.
I advised him that he did not have to come to the station with me, that he did not have to talk to me, and that he did have a right to counsel. He said he already knew that.
Appellant was arraigned at 11 a. m. on March 31, 1965. The electronic recording of this proceeding discloses that appellant was advised by District Judge Vochoska in pertinent part as follows:
I advise you of your rights. First of all you have the right not to make any statement. Any statements you do make can be used against you. You have the right to be represented by an attorney and you have a right to a preliminary hearing * * *. I'll ask you at this time do you have any plans to get an attorney? Do you want an attorney?
Bail was set at $100,000 and a preliminary hearing was ordered for April 16, 1965. On April 14, 1965, appellant was indicted by the grand jury for first degree murder. On April 15, 1965, appellant was arraigned and counsel were appointed to represent him. On April 19, 1965, appellant entered a plea of not guilty. On April 26, 1965, appellant filed a motion to dismiss the indictment because of the failure of the state to provide him with representation by counsel at all stages of the proceedings, which motion was denied. The original indictment was later dismissed and appellant was reindicted on June 16, 1965, on the two counts previously mentioned in this opinion. Appellant's renewed motions to dismiss because of his lack of counsel during all stages and for failure of the state to provide a preliminary hearing were denied.
Appellant cites the sixth amendment of the United States Constitution and article I, section 11, of the Alaska constitution, both of which provide that in all criminal prosecutions the accused shall have the right to the assistance of counsel for his defense. It is argued that pursuant to these constitutional provisions the Alaska Legislature enacted AS 12.25.150(b) which provides that immediately after an arrest a prisoner shall have the right to communicate with his attorney, with any relative or friend and that any attorney authorized to practice in Alaska, at the request of the prisoner, has the right to immediately visit the prisoner. 6
Appellant argues that there can be no doubt that in Alaska a person has the right to retain an attorney immediately upon his arrest and asks if a different rule of law is to be applied to an indigent.
Appellant then cites Powell v. State of Alabama, 7 Escobedo v. State of Illinois, 8 and Jones v. United States 9 in concluding that under the law there is now an absolute right to counsel at the time of arrest, the denial of which is reversible error, and that an indigent's right to counsel is co-extensive with that of the wealthy defendant.
Appellant urges that the time from his arrest on March 31, 1965, until April 14, 1965, was a critical period; that if counsel had been appointed immediately after his arrest a meaningful autopsy could have been performed by an independent doctor to establish the time of decedent's death; that the fingernails of decedent could have been scraped to determine the race of her assailant and that a preliminary hearing could have been had to ascertain the nature of the evidence against appellant which would no doubt have prompted additional investigation.
Before attempting to dispose of the several facets of appellant's legal argument it seems advisable to consider recent decisions of the Supreme Court of...
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State v. Higley
...to prepare, in computing reasonable time. Alaska's statute likewise requires a hearing within a reasonable time. In Martinez v. State (Alas.1967), 423 P.2d 700, the court discussed the impracticality of requiring a hearing within a specific time, and noted that what constitutes a reasonable......
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State v. McElderry
...a reasonable time must be determined by the facts of the case. In Martinez, a sixteen-day delay was found reasonable. See Martinez, 423 P.2d at 710. We therefore concluded in Higley that "a 10-day delay in determining probable cause was not unreasonable." Higley, 190 Mont. at 420, 621 P.2d ......
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State v. Robison
...710-11, in which the Alaska Supreme Court concluded that what constitutes a reasonable time must be determined by the facts of the case. In Martinez, a sixteen-day delay was found reasonable. See Martinez, 423 P.2d at 710. We therefore concluded in Higley that "a 10-day delay in determining......