State v. Martinez

• Decision Date: 13 June 1980
• Docket Number: No. 14639,14639
• Citation: 188 Mont. 271,37 St.Rep. 982,613 P.2d 974
• Court: Montana Supreme Court
• Parties: The STATE of Montana, Plaintiff and Respondent, v. John Adolph MARTINEZ, Defendant and Appellant.

Page 974

613 P.2d 974

188 Mont. 271

The STATE of Montana, Plaintiff and Respondent, v. John Adolph MARTINEZ, Defendant and Appellant.

No. 14639.

Supreme Court of Montana.

Submitted March 24, 1980.

Decided June 13, 1980.

Daniel Donovan argued, Chief Public Defender, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Richard Larson argued, Asst. Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Great Falls, for plaintiff and respondent.

HASWELL, Chief Justice.

John Adolph Martinez, defendant and appellant, was convicted of felony theft by jury verdict in the Cascade County District Court. This appeal attacks the judgment of conviction on the following grounds: (1) insufficiency of the evidence; (2) the impropriety of allowing several prejudicial hearsay statements over objection; (3) the denial of a fair trial and adequate assistance of counsel because of the court's restrictions on defendant's opening statement, and (4) the giving of a jury instruction commonly known as the "Sandstrom instruction."

On May 30, 1978, defendant Martinez removed several components of stereo equipment owned by Scott Polotto from a residence occupied by defendant and Ray Lenz in Great Falls, Montana. Martinez transported the equipment to his mother's address in Great Falls and contacted Joyce Lange. He told Ms. Lange that he wanted to sell the equipment so he could get out of town and that it was not stolen. Ms. Lange agreed to purchase the equipment. She picked it up at Martinez' mother's house. On her way home Ms. Lange was stopped and questioned by two police officers about the equipment. She told them that she had purchased the equipment from the defendant.

Scott Polotto, the owner of the stereo equipment, was in the Cascade County jail when it was taken. His bail had been set at $50,000. After informing Polotto that his stereo had been taken, the police officers asked him several questions. In response to a question, Mr. Polotto informed the police that he had not given anyone permission to take the equipment. Scott Polotto later said that he understood that the defendant's purpose was to raise his bail.

At trial defense counsel, after objection by the prosecutor, was twice stopped during his opening statement. He was attempting to discuss the elements of the crime, the burden of proof, and the presumption of innocence. The prosecution's objections were sustained on the basis that defense counsel was arguing the case which is improper in the opening statement. The transcript reveals the following narrative with respect to defense counsel's opening statement.

"MR. LANG: Thank you. Ladies and gentlemen of the jury. At this time the defendant, through myself as his counsel, is permitted to make an opening statement also to the jury panel, and members. The State of Montana has filed an information in this case, by which they have charged the defendant, Mr. Martinez, with the crime of felony theft. Now, I discussed with you on the voir dire examination about some of the underlying principles of the law, and about the presumption of innocence, and the burden of proof, and proof beyond a reasonable doubt, and I would just like to go over those again with you again at the present time

"MR. BROWNING: If your honor please, we object to this on the ground that counsel is now arguing the case before the jury, instead of telling the jury what he intends to prove in his case. This is not an opening statement that counsel is now making to the members of the jury.

"THE COURT: The court will sustain the objection. The purpose of an opening statement is to give the jurors a preview of the evidence which will be presented, and not an argument.

"MR. LANG: Ladies and gentlemen of the jury, at this time the State of Montana has the obligation of proving each and every element of the offense charged in the information. Now, as you will recall, the judge had instructed you, just prior to your leaving for lunch, and the judge did recite the charge that the State has made against the defendant. Now, the State has the obligation of proving each and every element of the offense, and that was that Mr. Martinez did, purposely and knowingly

"MR. BROWNING: We will again object, your honor, that counsel is arguing the case to the jury.

"MR. LANG: Your honor, at this time the State of Montana has indicated what they will prove, and I intend to show to the jury each of the items that they should look for, as the testimony progresses in the case, and that if any of those items should be missing, I would ask that the members of the jury be careful to note the fact that there is certain evidence which has not been presented, and which the State has to prove.

"THE COURT: Well, Mr. Lang, I think that would be for final argument. I think that counsel is misconstruing the purpose of an opening statement. Once again the purpose of an opening statement is to present to the jurors a preview of the evidence that is to be presented by the defendant. You, of course, will be given an opportunity in your final argument to argue the points that you are now raising. The objection is sustained.

"MR. LANG: Well, then, your honor, at this time, and because of the court's ruling, I have no opening statement to make and would object to the court's ruling.

"THE COURT: The record may so show.

"MR. LANG: I feel that a review of the charges, in light of a review of the charges in a light that is viewed by the defendant would be in order for the jury, and I would request the opportunity to explore each and every one of these items and elements with the jury, in the light that is most favorable to the defendant.

"THE COURT: The court will sustain the objection and overrule the motion of defendant.

"MR. LANG: Ladies and gentlemen, I have merely a short statement to make to you. I would ask that you listen to the evidence carefully, and that you listen also to not only what you do hear, but also to what you do not hear, because it is the position of the defendant that the State of Montana cannot prove each and every element of this charge. Thank you."

During the course of the trial Scott Polotto testified that he had loaned the equipment to Ray Lenz, the defendant's roommate, and that he and Mr. Lenz had a reciprocal agreement to sell any of the other's property if the other needed to raise bail. He further testified that he had talked with two police officers, Detective Warrington and Detective Macek, when he was in jail, regarding his equipment and that he had never "directly" given Martinez permission to take the equipment. Upon cross-examination Polotto stated that he now understands that the defendant removed the equipment in an attempt to raise his bail and that knowing the details, he now authorizes the defendant's conduct. The last statements were admitted over the State's objection on the basis that Polotto's state of mind was in issue because of the "unauthorized control" element of theft set forth in section 45-6-301, MCA. On redirect examination the prosecution questioned Polotto concerning a conversation with Detective Warrington, and he testified that he told Detective Warrington that he had given no one permission to take the stereo equipment.

After Scott Polotto testified, the State several times was allowed, over hearsay objections, to obtain testimony from two police officers concerning Polotto's statements to them. The State called Detective Warrington and questioned him concerning the conversation with Scott Polotto. Detective Warrington testified that he had asked Scott Polotto if he had given anyone permission to take the equipment. The State's question of "What was his (Polotto's) response" was objected to as hearsay. The objection was overruled after the Deputy County Attorney stated that the defense had put Polotto's state of mind in issue. The transcript indicates that the following testimony was admitted after the defense's objection:

"MR. BROWNING: All right, then, what was the content of the conversation that you had with Scott Polotto, Detective Warrington? A. Well, Scott Polotto was very irritated that anybody would have been there, taking his stereo equipment. He stated that he did not give permission for anybody to remove his stereo equipment from that residence, where we had arrested him."

Following Detective Warrington's testimony, the State called Detective Macek, who was present at the time the conversation between Detective Warrington and Scott Polotto took place. Macek testified, without further objection, to the same conversation that Scott Polotto and Detective Warrington had already testified to.

The State rested its case after Detective Macek's testimony. The defendant then moved for a directed verdict "on the grounds that the testimony shows that the defendant, Mr. Martinez, did not exert unauthorized control over the alleged stolen stereo equipment, but, in fact, this control was subsequently ratified by Mr. Polotto, and it is a well known rule of agency that a principal can subsequently ratify a contract which was originally unauthorized, and that such ratification relates back to the time of the contract, and renders such contract authorized."

The defendant's motion was denied and the District Court refused to give the following proposed instruction.

"You are instructed that ratification is the adoption or affirmance by a person of a prior act which was done or professed to be done on his account. If one ratifies another's unauthorized act, on his behalf, the act is given effect as if originally authorized. It is equivalent to, or a substitute for, and has the effect of curing the absence of, original authority. Ratification relates back to the time when the act was done, and supplies original authority to do the act. Therefore, if you find that Scott Polotto, subsequent to May 30, 1978, ratified the acts of John Adolph Martinez, you must find that John Adolph Martinez did not obtain or exert...