Salaz v. State

• Decision Date: 09 March 1977
• Docket Number: No. 4626,4626
• Citation: 561 P.2d 238
• Parties: Walter SALAZ, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 238

561 P.2d 238

Walter SALAZ, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4626.

Supreme Court of Wyoming.

March 9, 1977.

David B. Park and Ronald W. Hofer, Casper, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Frederick J. Harrison, Legal Intern, Cheyenne, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, RAPER and THOMAS, JJ., and BROWN, District Judge.

BROWN, District Judge.

The appellant, Walter Salaz, was tried before a jury in the district court of Natrona County and was convicted of three counts of obtaining goods by false pretenses, in violation of § 6-38, W.S.1957. He was sentenced to serve a term in the Wyoming State Penitentiary.

During the trial of appellant, the principal witness for the prosecution was Dianna Martinez. Martinez testified that in late November of 1974 Salaz had in his possession the Albertson's credit card of James E. Deal, and that he gave the credit card to her for the purpose of making unauthorized purchases. Martinez further testified that Salaz was with her on two of the occasions when she used the credit card, that they argued over purchases to be made with the card, and that on one occasion when he was not with Martinez Salaz sent her to buy gloves for him and groceries for his sister. After the three purchases Salaz removed the credit card from Martinez' possession.

Other facts necessary in this appeal will be recited in connection with individual errors alleged by the appellant.

The appellant seeks reversal on appeal alleging two errors as follows:

(1) The defendant was prohibited from informing the jury of the witness' record of serious juvenile convictions, and that such action was the denial of the appellant's Sixth Amendment rights under the United States Constitution.

(2) That the district court erred in not granting the appellant's motion for a new trial because the appellant had met all requirements for such motion based on newly discovered evidence.

(1) The denial of the right of confrontation of a witness

While Martinez was testifying, the prosecution introduced a motion in limine to prevent the defense from questioning the witness about her juvenile past. Martinez had been arrested in California at the age of 15 with two adults for three counts of robbery and one count of the sale of heroin. At that time Martinez had confessed to one count of robbery. She was placed in the custody of the California Youth Authority. Martinez never appeared before any California court, nor had she ever been represented by counsel. At the age of 18 she was released without continuing supervision. The district court granted the State's motion in limine, consistent with the Wyoming Juvenile Court Act, §§ 14-115.39 and 14-115.40, W.S.1957, 1975 Cum.Supp.

In arguing that the appellant was denied his Sixth Amendment rights of confrontation of witnesses, appellant relies principally on the case of Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis the petitioner was convicted of grand larceny and burglary. During the trial the prosecution requested a protective order denying defense counsel the right to inquire into the juvenile record of Green, a key prosecution witness. The protective order was granted. The United States Supreme Court reversed and ruled that this denial constituted a violation of the accused's rights under the Sixth and Fourteenth Amendments.

A major factor in the high court's reversal was that Green, the key witness in Davis, was on probation by order of the juvenile court at the time the events to which he testified had occurred and at the time of Davis' trial. Green had been adjudicated a delinquent for burglarizing two cabins. In opposing the protective order Davis' counsel emphasized that he would not introduce Green's juvenile record to impeach Green's character as a truthful person, but only to demonstrate to the jury that at the very time Green was assisting the police in identifying the petitioner he was on probation for burglary. From this Davis would seek to show-or at least argue-that Green had acted out of fear or concern of possible jeopardy to his probation. Davis argued that Green could have made a hasty and faulty identification of petitioner to shift suspicion away from himself as the one who committed the robbery. Green also could have been subjected to undue pressure from the police to make a certain identification under fear of possible probation revocation. Davis' lawyer would reveal Green's record to probe Green for bias and prejudice and not generally to call Green's good character into question.

The key witness in Davis had two compelling reasons to be biased in his testimony. He was anxious to cooperate with the authorities so that he could protect his status as a probationer. He was also apprehensive about being a suspect himself if the case against petitioner did not develop or disintegrated.

The Supreme Court held in Davis that the State's policy of protecting the confidentiality the State's policy of protecting the confidentiality of the juvenile offender's record must give way to a constitutional right to effective cross-examination. The Court said (415 U.S. at 320, 94 S.Ct. at 1112):

'* * * (W)e conclude that the State's desire that Green fulfill his public duty to testify free from embarrassment and with his reputation unblemished must fall before the right of petitioner to seek out the truth in the process of defending himself.

'The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. * * *'

In his concurring opinion in Davis, Mr. Justice Stewart appears to have set the parameters of the majority opinion. He states (415 U.S. at 321, 94 S.Ct. at 1112):

'* * * Such cross-examination was necessary in this case in order 'to show the existence of possible bias and prejudice . . .,' ante, at 1111. In joining the Court's opinion, I would emphasize that the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through crossexamination about his past delinquency adjudications or criminal convictions.' (Emphasis supplied)

The state courts that have considered Davis have not been in agreement as to the parameters of the majority opinion. Cf. State v. Deffenbaugh, 217 Kan. 469, 471, 536 P.2d 1030, 1033-1034 (1975), and State v. Myers, 350 A.2d 611, 612-615 (R.I.1976) (apparently construing Davis to apply to general impeachment of a witness' credibility) with Commonwealth v. Ferrara, 330 N.E.2d 837, 840-843 (Mass.1975), and State v. Brown, 132 N.J.Super. 584, 585-587, 334 A.2d 392, 393-394 (1975) (both interpreting Davis to pertain only to impeachment by showing bias or prejudice).

This court has heretofore indicated its acceptance of Justice Stewart's view of the holding in Davis that it was limited to the showing of bias or prejudice. Connor v. State, 537 P.2d 715 (Wyo.1975).

In the case at bar the witness Martinez was not on probation or parole. She was not subject to loss of freedom or other punishment due to the previous juvenile adjudication. She had no fear of revocation of probation or parole if she failed to cooperate with the police. Resultant bias or prejudice from the juvenile proceedings in California were nonexistent. In this case, as distinguished from the Davis case, the witness Martinez was not apprehensive about being prosecuted in connection with illegal use of the credit cards. Prior to the trial of defendant Salaz there were several charges, including three counts of illegal use of the credit card, pending against Martinez. It was brought out in examination at the trial that she had pleaded guilty to forgery and one count of possession of a controlled substance. In exchange for her pleas of guilty the other charges were dismissed, including the three counts alleging the illegal use of the credit cards, prior to the Salaz trial. She was not under a threat of further prosecution when she testified.

In Salaz' trial, as distinguished from the Davis case, extensive evidence relevant to the question of bias and prejudice of a key witness was admitted by the court. Under direct examination the jury learned that Martinez had pleaded guilty to one count of forgery. Through forgery she had supported Salaz' use of drugs and in the terminology of the street she had been his 'old lady.' In cross-examination defense counsel probed deeply into every possible motivation behind Martinez' testimony. Martinez admitted jealousy of Shirley Goddard, the appellant's other girl friend. Martinez stated that she believed appellant had 'squealed' on her and that he had been responsible for her arrest. Repeated defense questioning revealed that Martinez had had intercourse with appellant and at the time of her arrest Martinez was pregnant with Salaz' baby. While in jail she suffered a miscarriage. Defense counsel determined in cross-examination that Martinez had had extensive experience with drugs, that her only child was presently in the custody of her estranged husband, and that the child had not always received adequate care or nourishment from Martinez. In cross-examination defense counsel again brought to the attention of the jury that Martinez had pleaded guilty to forgery and that she had been granted immunity from further prosecution in exchange for her testimony.

Direct and cross examination clearly established Martinez' possible bias and prejudice against appellant and generally demonstrated her unsavory...