Montez v. State
| Decision Date | 30 December 1977 |
| Docket Number | No. 4796,4796 |
| Citation | 573 P.2d 34 |
| Parties | Steven MONTEZ, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
King Tristani, Asst. Public Defender, Laramie County, Cheyenne, signed the brief and appeared in oral argument on behalf of appellant.
V. Frank Mendicino, Atty. Gen., and Jim E. Gusea, Asst. Atty. Gen., Cheyenne, signed the brief and Jim E. Gusea appeared in oral argument on behalf of appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
Appellant-defendant was found guilty by a jury in the district court of burglary and battery upon a person lawfully in the burglarized enclosure, in violation of § 6-129(B)(4), W.S.1957, and sentenced to a penitentiary term of not less than three years nor more than seven years. On appeal, defendant raises three issues:
1. Whether the trial court erred in refusing to allow the defendant to call the assistant county attorney as a witness;
2. Whether the trial court erred in refusing to charge the jury with the defendant's proffered eyewitness identification instruction;
3. Whether the trial court erred in refusing to vacate the second sentence imposed on the defendant.
We shall affirm.
Sometime between 10:30 p.m. and 11:30 p.m. in the evening of September 26, 1976, Mary Hinton heard the sound of glass breaking in the back of her house. After telling her son to seek help at her sister's house about two blocks away, she walked down the hallway to her bedroom where she encountered a man trying to remove her daughter's bicycle through the bedroom window and hand it to another man stationed outside.
As soon as Mrs. Hinton stepped into the bedroom, the burglar turned and assaulted her. He grabbed the front of her blouse, tearing it as a result, then grabbed her left arm and spun her around. He then inflicted several cuts on her face, arms and back with a shiny piece of metal approximately three or four inches long. After Mrs. Hinton fell to the floor, the burglar cut her again, and then departed the house.
The assault lasted approximately four minutes during which time Mrs. Hinton was able to see her assailant's face two or three times. Although there was no light in the bedroom itself, the room was illuminated by a mercury vapor lamp outside the window with sufficient intensity to enable a person in the room to discern colors. Mrs. Hinton identified the burglar-assailant as the defendant. While she had never been formally introduced to defendant, Mrs. Hinton testified to having seen him in the neighborhood once or twice a day since May of 1976, and had heard him referred to as Steve or Montez.
At trial, the defendant relied on the testimony of two alibi witnesses as his sole defense. His sister testified that the defendant and his girlfriend had been at her house for dinner on the evening in question and that she and her husband had driven the couple home, dropping them off at approximately 12:30 a.m. This alibi testimony was corroborated by defendant's girlfriend.
Immediately following the jury's return, on January 19, 1977, of a verdict of guilty to the crime charged, the trial judge handed down a sentence from the bench wherein the defendant was sentenced to a prison term of "not less than five years nor more than seven years and that three years of that sentence be suspended from the top time". Immediately following adjournment, the trial judge indicated to counsel in chambers his concern that the defendant was under the influence of something during the sentencing, and if this were true, additional time was necessary to get him in a position where he was able to comprehend, able to function a little better before the court. The trial judge then stated there would be a continuance of the sentencing proceeding.
The sentencing proceeding was continued on January 26, 1977, the trial judge's suspicions being confirmed by a medical report submitted to the court as well as the defendant's own statement that he had taken more of the valium prescribed for him than he should have. The trial judge responded that it was not his intent to punish the defendant because of his suspicions about defendant's condition but rather that his primary concern at the original sentencing was the defendant's ability to comprehend the nature and the consequences of a term of "not less than three (3) years, nor more than seven years" and this was the sentence entered. This appeal followed.
On cross-examination by the State, defendant's sister stated that she first realized defendant could not have committed the crime charged when she heard Mrs. Hinton's testimony at the preliminary hearing. The prosecution then elicited testimony from her to the effect that she had not informed the sheriff's office, the trial judge, or any police of this alibi prior to trial. Following cross-examination, counsel for defendant attempted to call the assistant county attorney as an adverse witness. An offer of proof was made out of the presence of the jury, attempting to show that even if the witness had in effect attempted to contact the county attorney's office regarding defendant's alibi, no further follow-up by that office would have been made. The trial court refused to allow the assistant county attorney to testify, and we agree.
Although, as a general rule, an attorney is not disqualified as a competent witness merely because of his participation in a trial, either as prosecutor or counsel for the defense, courts have been extremely reluctant to allow lawyers, including prosecuting attorneys, to be called as witnesses in trials in which they are advocates. Annotation, "Prosecuting Attorney as a Witness in Criminal Case", 54 A.L.R.3d 100 (1973). As stated in Johnson v. State, 1922, 29 Wyo. 121, 211 P. 484, 487, "(T)he practice of county attorneys testifying in criminal cases should be the exception, and not the rule,". And as reflected by a vast weight of authority, any decision whether or not to allow an attorney to be called is left to the discretion of the trial judge. Gajewski v. United States, 8 Cir. 1963, 321 F.2d 261, cert. den. 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416; Fisher v. United States, 9 Cir. 1956, 231 F.2d 99; United States v. Maloney, U.S.D.C., W.D.Pa. 1965, 241 F.Supp. 49; People v. Gendron, 1968, 41 Ill.2d 351, 243 N.E.2d 208, cert. den. 396 U.S. 889, 90 S.Ct. 179, 24 L.Ed.2d 164, State v. Stiltner, 1962, 61 Wash.2d 102, 377 P.2d 252, cert. den. 380 U.S. 924, 85 S.Ct. 928, 13 L.Ed.2d 810.
Once the decision has been made, the standard on appeal against which to measure the trial judge's exercise of discretion has been articulated in several ways. In United States v. Maloney, supra, the court described the standard this way, 241 F.Supp. at 50:
In Gajewski v. United States, supra, the court also discussed what effect a defendant's right to call witnesses has on the question of calling the prosecuting attorney, 321 F.2d at 268-269:
"To be sure, an accused's right to call relevant witnesses and to present a complete defense may not be abrogated for the sake of trial convenience or for the purpose of protecting a United States Attorney from possible embarrassment while testifying, if he possesses information vital to the defense. * * * " (Emphasis added.)
And, finally, in State v. Stiltner, supra, the court stated, 377 P.2d at 253-254:
See also Johnson v. State, 1974, 23 Md.App. 131, 326 A.2d 38, aff'd. 275 Md. 291, 339 A.2d 289; People v. Nelson, 1967, 89 Ill.App.2d 84, 233 N.E.2d 64; People v. Boford, 1953, 117 Cal.App.2d 576, 256 P.2d 334; State v. Lee, 1943, 203 S.C. 536, 28 S.E.2d 402, 149 A.L.R. 1300.
Applying these standards to the situation presented at bar, we can find no abuse of the trial judge's discretion in denial of defendant's request to call as an adverse witness the assistant county attorney. While we agree that a defendant has a right to call relevant witnesses and present a complete defense, we fail to see how the rejected testimony here is vital to the defense. The sole apparent purpose behind the defense's request was rehabilitation of defendant's alibi witness, not establishment of a new defense theory or fulfillment of a vital blank in a present theory.
Besides that, the witness would have been asked to speculate as to what he would have done under circumstances that had not, in fact, existed. In the offer of proof that was made, counsel said, "I don't know what his answer might be", "I would imagine his answer might be vague." A defendant has the burden to show that the evidence he offers to produce is relevant. The...
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