Rodriguez v. State

• Decision Date: 30 December 1985
• Docket Number: No. 85-35,85-35
• Citation: 711 P.2d 410
• Parties: Michael Jesus RODRIGUEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 410

711 P.2d 410

Michael Jesus RODRIGUEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-35.

Supreme Court of Wyoming.

Dec. 30, 1985.

Leonard D. Munker, State Public Defender, Cheyenne, Martin J. McClain, Appellate Counsel, Gerald M. Gallivan, Director, Defender Aid Program, Laramie, and James A. Horner, Jr., Student Director, Defender Aid Program (argued), for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Lawrence J. Wolfe, Sr. Asst. Atty. Gen. (argued), for appellee.

Before THOMAS, C.J., and ROSE, ^* ROONEY, ^** BROWN, and CARDINE, JJ.

CARDINE, Justice.

Appellant Michael Rodriguez, after trial to a jury, was convicted of aggravated burglary and aggravated robbery. The principal issues presented for our determination are closely related. We must decide whether the trial court erred in admitting into evidence testimony given by the robbery victim at a preliminary hearing, whether admission of that testimony violated the appellant's rights under the confrontation clauses of the United States and Wyoming Constitutions, and whether the evidence was sufficient to sustain the conviction. ¹

We affirm the judgment of the district court and hold that the testimony at issue was properly admitted under the former-testimony exception to the hearsay rule, Rule 804(b)(1), W.R.E., that the admission of the testimony did not violate the confrontation clauses of either the United States or Wyoming Constitutions, and that the evidence was sufficient to sustain the convictions.

FACTS

Late in the evening of September 18, 1983, a man broke into the home of 79-year-old Bernice McIntosh, tied her to a chair, and robbed her at knifepoint. After the man fled, Bernice McIntosh managed to free herself and called the police. Upon their arrival, she identified her assailant as the appellant, Michael Rodriguez, who had done yard work for her in the past. Mrs. McIntosh informed the officers that she had recognized appellant by his voice and appearance and that he had taken approximately $182 from her. The police went to appellant's residence and arrested him. In a search of the premises, they found $91 in a desk drawer and $91 in a wallet.

The next morning, Mrs. McIntosh was interviewed at the police station. She was shown a photo lineup containing sixteen photographs from which she identified appellant as her assailant. On October 7, 1983, Mrs. McIntosh testified at appellant's preliminary hearing. On direct examination Mrs. McIntosh again identified appellant as the man who had broken into her home, assaulted, and robbed her. During extensive cross-examination, appellant's attorney inquired into Mrs. McIntosh's ability to identify the appellant. She was asked details of her acquaintance with appellant, how many times she had seen him before the robbery, whether he looked the same to her, and whether she had a problem identifying him during the robbery. Inquiry was made into her physical health and eyesight. Mrs. McIntosh gave detailed answers to these inquiries and stated she had no difficulty identifying appellant as the perpetrator of the crime charged.

Five days before appellant's trial began, Mrs. McIntosh died of causes unrelated to the robbery. At trial, the transcript of Mrs. McIntosh's testimony at the preliminary hearing was introduced and read to the jury. In addition, the prosecution introduced, through police testimony, statements made by Mrs. McIntosh on the night of the robbery in which she identified the appellant as her assailant. Finally, evidence of Mrs. McIntosh's identification of the appellant during the photo lineup was introduced through the testimony of a police officer. The jury found the appellant guilty of one count of aggravated robbery and one count of aggravated burglary, and he was sentenced to concurrent terms of

ten to fifteen years in the Wyoming State Penitentiary.

THE FORMER-TESTIMONY EXCEPTION TO THE HEARSAY RULE

Appellant contends that Mrs. McIntosh's testimony at the preliminary hearing was not properly admissible at trial under Rule 804(b)(1), W.R.E. The only Wyoming precedent involving the admission at trial of testimony taken at preliminary hearings is found in cases decided by this court before the adoption of the Wyoming Rules of Evidence in 1978. In Simms v. State, Wyo., 492 P.2d 516, 521 (1972), for example, we held that a witness' preliminary hearing testimony is admissible at trial if the witness is unavailable to testify. In its brief, the State argues that Simms is still sound law independent of the rules of evidence. While the Simms rationale may be useful, and the Simms case might be decided the same way today, we cannot apply the Simms holding without first analyzing its validity under Rule 804(b)(1), W.R.E., the former-testimony exception to the hearsay rule.

Under Rule 804(b)(1), W.R.E., former testimony may be introduced if three elements are present. First, the declarant must be unavailable at trial. In the present case, there is no dispute as to Mrs. McIntosh's unavailability. Second, the former testimony sought to be admitted must have been given by the witness while testifying in another hearing or deposition. Again, the parties agree that the second element was satisfied because Mrs. McIntosh gave the disputed testimony at a preliminary hearing. Third, the party against whom the statement is offered must have had "an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination" at the prior hearing. Rule 804(b)(1), W.R.E. It is this last element that serves as the focal point of the dispute in this case.

Appellant argues that he did not have the same motive and opportunity to cross-examine Mrs. McIntosh at the preliminary hearing. We note at the outset that there is no bona fide issue regarding appellant's opportunity to cross-examine Mrs. McIntosh at the preliminary hearing. The hearing transcript contains twenty pages of testimony obtained from Mrs. McIntosh during cross-examination. It includes detailed questioning by appellant about the witness' health, eyesight, and ability to recognize her assailant. The court did not in any way limit appellant's cross-examination of Mrs. McIntosh on the issue of identification. Clearly, appellant had a full opportunity to cross-examine.

The key question, then, is whether appellant's motive to cross-examine Mrs. McIntosh at the preliminary hearing was similar to the motive he would have had to cross-examine her at trial. The courts of other states have approached the question in three ways. They have held that defense attorneys never have similar motives to cross-examine at both preliminary hearings and trials; that defense attorneys always have similar motives to cross-examine at preliminary hearings and trials; and that defense attorneys' motives at preliminary hearings and trials must be compared on a case-by-case basis.

The Colorado Supreme Court has held that a defense attorney never has a motive to cross-examine a witness at a preliminary hearing which is similar to his motive to cross-examine that witness at trial. In People v. Smith, 198 Colo. 120, 597 P.2d 204, 207 (1979), the Colorado court stated that a preliminary hearing has the limited purpose of establishing probable cause. In most cases, even the most searching cross-examination will not prevent a finding of probable cause which is a considerably lesser burden of proof than the reasonable-doubt standard required at trial. Therefore, according to the Colorado court, defense attorneys will rarely, if ever, waste their time with effective cross-examination at the preliminary hearing. They will wait until trial where they will be highly motivated to attack the credibility of the witness in front of the jury.

The Colorado court's position is rejected by a majority of states. 4 Louisell and Mueller, Federal Evidence § 487, p. 1092 (1980). Most courts that have decided the issue have refused to adopt a per se rule against admission of preliminary hearing testimony at trial. In fact, several courts have held that preliminary hearing testimony is always admissible at trial if the declarant is unavailable. They reason that a defense attorney's "motive and interest are the same" in both the preliminary hearing and trial settings. Defense counsel "acts in both situations in the interest of and [is] motivated by establishing the innocence of the client." State v. Brooks, Utah, 638 P.2d 537, 541 (1981). See also, State v. Martinez, 102 N.M. 94, 691 P.2d 887, 889 (1984).

Unlike the Colorado, New Mexico, and Utah courts, the Supreme Court of Arkansas has refused to adopt a per se rule of either admission or exclusion of former testimony from a preliminary hearing. That court has held that the "similar motive" requirement of the former-testimony exception should be analyzed on a case-by-case basis. Scott v. State, 272 Ark. 88, 612 S.W.2d 110, 113 (1981). In Scott, the Arkansas court held that preliminary hearing testimony should not have been admitted at trial under the facts of that case, but, in the proper case, preliminary hearing testimony would be admissible.

We adopt the case-by-case approach taken by the Arkansas court. There will undoubtedly be cases in which preliminary hearing testimony should not be admitted at trial because the defense attorney did not have a similar motive to cross-examine the witness at the preliminary hearing but has a compelling motive to undertake that cross-examination at trial. There will also be cases, like the case at bar, in which the defense attorney has a motive at the preliminary hearing to cross-examine the witness which is similar to his motive to cross-examine at trial. The motive may exist whether or not cross-examination actually occurs. The per se rules adopted by Colorado on the one hand, and Utah and New Mexico on the other, do not account for the varying factual...