State v. Martinez
| Decision Date | 02 August 1985 |
| Docket Number | No. 15038,15038 |
| Citation | 704 P.2d 965,109 Idaho 61 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Levi Wilfred MARTINEZ and Frank Martinez, aka Poncho Martinez, Defendants- Appellants. |
| Court | Idaho Court of Appeals |
Van G. Bishop, Canyon County Public Defender, Nampa, for defendants-appellants.
Jim Jones, Atty. Gen. by Lynn E. Thomas, Sol. Gen., and Myrna A.I. Stahman (argued), Deputy Atty. Gen., Boise, for respondent.
This is an appeal by two brothers, Levi and Frank Martinez, who stand convicted of rape, lewd conduct with a minor, aggravated battery and second degree kidnapping--all committed against the same victim. Each brother received a thirty-year fixed term for the rape, a consecutive thirty-year fixed term for the lewd conduct, another consecutive fifteen-year fixed term for the aggravated battery and a concurrent indeterminate twenty-five year term for the second degree kidnapping.
On appeal, the brothers have raised two general issues: (1) Did the trial court err by admitting evidence of uncharged criminal conduct and of statements made before the charged offenses were committed? (2) Should the sentences be modified, either because they represent multiple punishments for the same acts or because they are otherwise excessive? For reasons explained below we affirm the judgments of conviction, subject to adjustments in the sentences.
The facts of the case were hotly disputed at trial. The state's evidence showed that the Martinez brothers--men over twenty years of age--offered to give their second cousin, a twelve-year-old girl, a ride in Levi's automobile to a carnival. The girl, whose parents were not at home, accepted the offer. After stopping briefly at the carnival site, the threesome drove around the City of Nampa and drank wine in the car. The girl's requests to go home were unheeded. Eventually, they made their way to Lake Lowell. The girl, who admittedly had become "drunk," stumbled from the car. All three walked to the sandy shore of the lake, where one of the Martinez brothers struck the girl in the face. Both brothers then raped her. She also was sodomized. Moreover, a subsequent medical examination disclosed that a plastic cylinder, measuring approximately one inch by two inches, somehow had been forced through the rectum deep into her body.
The victim testified that she was reeling in and out of consciousness during the sexual assault. She remembered being dragged into the lake after the assault and hearing one of the brothers say he thought she was dead. She lost consciousness again and awoke while lying on a blanket in an alley near her home. Frank Martinez was there, hugging her. He later walked her to the house.
Another twelve-year-old girl, a friend of the victim who had been staying overnight with her, testified that before the victim returned home, Levi Martinez appeared. He stated that he and Frank had become separated from the victim after giving her a ride and that they were looking for her. The friend left the house with Levi, ostensibly to look for the victim. However, Levi drove her to a remote location where, after striking her in the face, he forced her to engage in sexual acts with him. During this incident, the friend observed wet and sandy clothes in the back of Levi's car. When Levi took the friend home, he told her to say nothing about what had happened.
The Martinez brothers denied engaging in any of this alleged conduct. Each relied upon an alibi defense. Levi testified--with some corroboration from other family members--that he had been at a third brother's house when the offenses occurred. Frank testified that he had been visiting a friend. Both admitted seeing the victim on the day in question but said they took her to the carnival and left her there. The jury evidently disbelieved this testimony. Verdicts of guilty were returned on the charges of kidnapping and rape; lewd conduct, pertaining to the sodomy; and aggravated battery, committed by inserting the plastic cylinder. This appeal followed.
We first consider the brothers' challenge to the trial judge's evidentiary rulings. As noted, the victim's friend testified about uncharged criminal conduct by Levi toward her. In State v. Matthews, 108 Idaho 482, 484, 700 P.2d 104, 106 (Ct.App.1985), we recently summarized the rules governing such testimony:
Idaho courts have long recognized that evidence of other crimes is inadmissible merely to show an accused's criminal propensity. State v. Needs, 99 Idaho 883, 591 P.2d 130 (1979). However, evidence of extrinsic crimes may be admitted to prove the offense(s) charged with respect to (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other, (5) the identity of the person charged with the commission of the crime on trial, or (6) other similar issues. State v. Wrenn, 99 Idaho 506, 584 P.2d 1231 (1978); State v. Boothe, 103 Idaho 187, 646 P.2d 429 (Ct.App.1982).
If such issues are material to the case, and if the evidence is relevant to one or more of the issues, the evidence will be admitted unless its probative value is outweighed by its unfair prejudicial impact. See generally Nevin, Other Crimes as Proof of Guilt, THE ADVOCATE vol. 26, no. 10 (Nov.1983), p. 20. This balancing of probative value against unfair prejudice is committed in the first instance to the sound discretion of the trial court. State v. Stoddard, 105 Idaho 533, 670 P.2d 1318 (Ct.App.1983).
The testimony at issue in this case was relevant in two respects. It was relevant, first, to the question of identity. The witness's observation of the sandy clothes in the back of the car corroborated the victim's story. Moreover, the witness's testimony about the entire incident conflicted with, and was relevant to determining the truthfulness of, Levi's alibi. Secondly, the testimony was relevant to establish that Levi was engaged in a common scheme of sexually assaultive behavior on the evening in question. The incidents involving the victim and her friend were remarkably similar. They occurred within hours of each other. Both consisted of taking under-age girls from a house where they had no parental supervision, driving them on an ostensibly legitimate errand, and then ultimately diverting them to a remote location where sexual conduct occurred. Both girls were struck in the face to intimidate them. In our view, the Wrenn tests of relevancy were satisfied. We further note that the judge explicitly adverted on the record to weighing of probative value against prejudicial impact. He determined that the former outweighed the latter. We find no abuse of discretion in this determination.
The brothers also have challenged a ruling by which the trial court allowed a woman to testify about a conversation she had with Frank Martinez three days before the offenses occurred. She said that while she was attending a concert at the Western Idaho Fairgrounds in Boise, Frank Martinez, with whom she had not previously been acquainted, sat near her and struck up a conversation. He stated, according to the witness, "that all women were bad and they hurt you, that mothers raise their little girls to hurt men; and ... that he had been hurt several times by women, but he would never get hurt by one again, because if he did, he'd get down on them bad because he was quick...."
Defense counsel sought to exclude this testimony upon the ground of irrelevancy. However, it has long been recognized--and is now provided in Rule 401, Idaho Rules of Evidence--that evidence is relevant if it tends to make the existence of any fact, which is of consequence to determining the outcome of litigation, more probable or less probable than it would otherwise be. Here, there is a significant proximity in time and nexus of subject matter between the statements attributed to Frank Martinez and the assault upon the victim. The statements legitimately tend to make it more probable that Frank participated in the assault. We find no error in admitting the testimony.
The Martinez brothers further contend, as an extension of their attacks upon the evidentiary rulings, that each brother was prejudiced by evidence adduced against the other. Frank argues that he was unfairly prejudiced by the testimony of the victim's friend concerning Levi's activities; and Levi submits that he was unfairly prejudiced by testimony regarding Frank's statements three days before the offenses occurred. The brothers acknowledge that they did not request separate trials or other relief, such as cautionary instructions. But they suggest, upon the purported authority of Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960), that the district court was required sua sponte to order a severance or other relief.
We disagree. Schaffer imposes no such rigid obligation upon a trial court. Rather, in Schaffer the United States Supreme Court held that joinder of co-defendants is permissible if they allegedly have participated in the same act or transaction, or in the same series of acts or transactions, constituting the offenses charged. The Court further noted that under Rule 14 of the Federal Rules of Criminal Procedure, a trial court "may" order separate trials "or provide whatever other relief justice requires" if the joinder is prejudicial. Rule 14 of the Idaho Criminal Rules contains similar language. The rule vests in a trial court sound discretion to order severance or other relief if prejudice appears to result from an initially proper joinder.
In this case, the joinder of the Martinez brothers clearly was proper in light of the offenses charged. Whether the district court abused its discretion by failing to order, upon its own motion, a severance or other relief turns upon the extent of ensuing prejudice. The burden of...
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... ... Boothe, 103 Idaho 187, 646 P.2d 429 (Ct.App.1982). We also have allowed testimony of prior criminal sexual acts of the defendant with persons other than the victim, where the evidence has been found relevant to such issues as a common modus operandi, intent or motive. See State v. Martinez, 109 Idaho 61, 704 P.2d 965 (Ct.App.1985); State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct.App.1982). But see State v. Roach, 109 Idaho 973, 712 P.2d 674 (Ct.App.1985) ... This case is different. The testimony concerning "passes" at other women would be relevant, if at ... ...
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