State v. Martinez

• Decision Date: 07 June 1989
• Docket Number: No. 87-2023-CR,87-2023-CR
• Citation: 440 N.W.2d 783,150 Wis.2d 62
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Jose MARTINEZ, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 783

440 N.W.2d 783

150 Wis.2d 62

STATE of Wisconsin, Plaintiff-Respondent, v.Jose MARTINEZ, Defendant-Appellant-Petitioner.

No. 87-2023-CR.

Supreme Court of Wisconsin.

Argued April 26, 1989.

Decided June 7, 1989.

William J. Tyroler, Asst. State Public Defender, for defendant-appellant-petitioner.

Marguerite M. Moeller, Asst. Atty. Gen. (argued), with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent.

CECI, Judge.

This case is before the court on petition for review of an unpublished decision of the court of appeals, dated August 10, 1988, 146 Wis.2d 866, 431 N.W.2d 328, which affirmed a judgment and orders of the Circuit Court for Racine county, Emmanuel Vuvunas, Circuit Judge, convicting the defendant of attempted murder by use of a dangerous weapon, under secs. 940.01(1),939.32, and939.63,Stats.1985-86, and endangering safety by conduct regardless of life by use of a dangerous weapon, under secs. 941.30and939.63,1985-86.¹The issue presented for review is whether the admission into evidence of the extrajudicial statements made by the defendant's nontestifying codefendant at their joint trial violated the defendant's right to confront the witnesses against him.We hold that the extrajudicial statements made by the defendant's nontestifying codefendant were properly admitted into evidence under the excited utterance exception to the hearsay rule, sec. 908.03(2), ² and that the defendant's right to confront the witnesses against him was not violated.

The facts of this case are as follows.On February 6, 1986, the defendant; his brother, John Martinez; and his brother's girlfriend, C.P., a minor, entered Hunter's Bar in the city of Racine.David Quiroz, an off-duty employee at the bar, asked John to leave the premises because John had brought C.P. into the bar.John refused to leave, and a physical confrontation occurred among several people, including the defendant, his brother, and David Quiroz, who at times were hitting one another.The defendant and his brother were eventually forcibly ejected from the bar.

Outside the bar, the altercation continued among the defendant, his brother, and David Quiroz.John Martinez began to verbally threaten David Quiroz.After each threat by John, David Quiroz would hit John.The threats were made in Spanish and were as follows: "I swear to God, David, you're going to die.""I'm going to kill you.""Quiroz, you f----- up.""You're a dead man.""We know where you live.""Don't make me do this to you, Dave."After making the threats, John reached into an inner pocket of his coat.Douglas Hood, the owner of Hunter's Bar, upon seeing John reach into his coat, grabbed John's hand, and patted him down, looking for a weapon.Hood, however, did not find a weapon on John.

Immediately thereafter, the defendant, who was being restrained by Richard Cruz, a patron of the bar, freed himself from Cruz's grasp, pulled a gun from his coat pocket, and shot David Quiroz once.The bullet went through Quiroz and passed into the abdomen of a bystander named Richard Fisher.After the shooting, the defendant tried to pass the gun to his brother John, but was prevented from doing so by Douglas Hood, who seized the weapon and used it to hold the defendant and his brother until the police arrived.

In pretrial motions, the defendant moved for an order precluding the state from introducing the statements made by his brother during the fight with Quiroz or, in the alternative, a separate trial from his brother.³The state opposed the motions, arguing that the statements showed a conspiracy between the brothers.The circuit court denied both motions, finding, in an oral statement, that John Martinez' statements were admissible against the defendant because "those are part of what was going on, and the witnesses are going to testify to and the charge is they were acting in concert, so I don't see any problems with the statements made at the scene...."

At trial, John Martinez did not testify.Consequently, the defendant was unable to cross-examine him about the statements he made during the fight with Quiroz.Nevertheless, in accordance with the circuit court's pretrial evidentiary ruling, John's statements were admitted into evidence against the defendant.Sometime before the case went to the jury for deliberations, however, the state decided to abandon its conspiracy theory against the defendants.Therefore, the jury was instructed only on direct-actor liability as to the defendant and aiding and abetting as to John Martinez.On December 13, 1986, the defendant was found guilty by the jury of attempted murder, endangering safety by conduct regardless of life, and going armed with a firearm while intoxicated.On January 30, 1987, the defendant was sentenced to nineteen-year, nine-year, and nine-month terms of imprisonment to be served concurrently.

During post-conviction motions, by way of a motion for a new trial under sec. (Rule) 809.30, Stats., the defendant renewed his objection to the admissibility against him of the statements made by John during the fight.The circuit court ruled that the statements were admissible against the defendant under the present sense impression exception to the hearsay rule.Sec. 908.03(1).

At the court of appeals level, the defendant argued that the primary theoretical basis for admissibility at trial--statement of co-conspirator--became irrelevant once the state elected not to rely on a conspiracy theory.The defendant also challenged the "present sense" rationale utilized by the circuit court on motions after verdict.In response, the state maintained that the statements were not admitted to prove the truth of the matter asserted, and, therefore, the confrontation clause was not implicated.Consequently, the state argued that it was unnecessary to consider whether the statements fell within some hearsay exception.

The court of appeals held, citing United States v. Chee, 422 F.2d 52(9th Cir.1970), that John Martinez' statements were properly admitted against the defendant as part of the res gestae "part of what was going on," which has been equated under the modern rules of evidence with the excited utterance rule of sec. 908.03(2), Stats.The court of appeals did not specifically discuss the elements of the excited utterance exception, nor did the court explain why John Martinez' statements fit within that exception.Similarly, the court of appeals failed to address the constitutional reliability of the statements as required by cases discussing the confrontation clause analysis.SeeState v. Nelson, 138 Wis.2d 418, 437-39, 406 N.W.2d 385(1987).

The issue presented for review by this court is whether the admission into evidence of the extrajudicial statements made by John Martinez violated the defendant's right to confront the witnesses against him.The threshold question to be determined is whether the statements fit within a recognized hearsay exception.Nelson, 138 Wis.2d at 429-30, 406 N.W.2d 385;State v. Bauer, 109 Wis.2d 204, 215, 325 N.W.2d 857(1982).If not, the statements should have been excluded.Id.If so, the confrontation clause must be considered.Nelson, 138 Wis.2d at 435-36, 406 N.W.2d 385;Bauer, 109 Wis.2d at 215, 325 N.W.2d 857.There are two requisites to satisfaction of the confrontation right.Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597(1980);Nelson, 138 Wis.2d at 437, 406 N.W.2d 385;Bauer, 109 Wis.2d at 215, 325 N.W.2d 857.First, the witness must be unavailable.Roberts, 448 U.S. at 65, 100 S.Ct. at 2538;Nelson, 138 Wis.2d at 437, 406 N.W.2d 385;Bauer, 109 Wis.2d at 215, 325 N.W.2d 857.Second, the statements must bear some indicia of reliability.Roberts, 448 U.S. at 66, 100 S.Ct. at 2539;Nelson, 138 Wis.2d at 438, 406 N.W.2d 385;Bauer, 109 Wis.2d at 215, 325 N.W.2d 857.If the statements fit within a firmly rooted hearsay exception, reliability can be inferred, and the evidence is generally admissible.Id.This inference of reliability does not, however, make the statements admissible per se.Id.The case must still be examined to determine whether there are unusual circumstances which may warrant exclusion of the statements.Id.If the statements do not fall within a firmly rooted hearsay exception, they can be admitted only upon a showing of particularized guarantees of trustworthiness.⁴Roberts, 448 U.S. at 66, 100 S.Ct. at 2539;Nelson, 138 Wis.2d at 438-39, 406 N.W.2d 385;Bauer, 109 Wis.2d at 215, 325 N.W.2d 857.

We will first address the question of whether the statements made by John Martinez fit within a recognized hearsay exception.The admission of evidence is within the discretion of the circuit court.State v. Fishnick, 127 Wis.2d 247, 257, 378 N.W.2d 272(1985).However, discretion contemplates factual findings based upon an examination of the evidence and the application of those facts to the proper legal standards.Id.After making such determinations, the circuit court may exercise its discretion whether to admit the evidence.We will find an abuse of discretion if the circuit court's factual findings are unsupported by the evidence or if the court applied an erroneous view of the law.After Hour Welding, Inc. v. Laneil Management Co., 108 Wis.2d 734, 740-41, 324 N.W.2d 686(1982).

After reviewing the record in this case and the applicable law, we conclude that the statements made by John Martinez during the fight with David Quiroz were admissible against the defendant, in the discretion of the circuit court, under the excited utterance exception to the hearsay rule.Sec. 908.03(2), Stats.We recognize that the circuit court did not admit the statements on this basis; however, we find that the defendant was not prejudiced by the circuit court's ruling because the statements were properly admissible under the excited utterance exception.Bertrang v. State, 50 Wis.2d 702, 708, 184 N.W.2d 867(1971).

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