State v. Martinez

• Decision Date: 02 March 2009
• Docket Number: No. 2 CA-CR 2007-0122.,2 CA-CR 2007-0122.
• Citation: 221 Ariz. 383,212 P.3d 75
• Parties: The STATE of Arizona, Appellee, v. Jack Jude MARTINEZ, Jr., Appellant.
• Court: Arizona Court of Appeals

212 P.3d 75

221 Ariz. 383

The STATE of Arizona, Appellee, v. Jack Jude MARTINEZ, Jr., Appellant.

No. 2 CA-CR 2007-0122.

Court of Appeals of Arizona, Division 2, Department A.

March 2, 2009.

Terry Goddard, Arizona Attorney General, By Kent E. Cattani and Melissa A. Parham, Phoenix, Attorneys for Appellee.

John William Lovell, Tucson, Attorney for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, Jack Jude Martinez, Jr. was convicted of second-degree burglary. The trial court sentenced him to an aggravated, seven-year prison term. On appeal, Martinez contends the court erred by admitting evidence of Martinez's statements to a neighboring jail inmate and a letter he sent his girlfriend. He also argues the prosecutor committed misconduct. Finding no error, we affirm.

Background

¶ 2 "We view the facts in the light most favorable to sustaining the conviction[ ]." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). In September 2005, Martinez was living with his girlfriend, L. Maria Cano (L.'s mother) and Cano's roommate lived in a different residence and, according to Cano's testimony, were storing 800 pounds of marijuana in their laundry room. Cano told her daughter about the drugs.

¶ 3 Martinez, in turn, learned of the marijuana stored at Cano's house and told a number of acquaintances about it. He told at least one friend that taking the marijuana "would be an easy way to make money." A few days later, Martinez went to work in the morning at his construction job. At about 10 a.m., during his lunch break, Martinez left the job site with two co-workers, T. and C., in T.'s truck. The job foreman testified none of them had returned to work that day and they had removed "extra tools" and "junk" from the back of T.'s truck when they left.

¶ 4 Around noon that same day, a motorist saw a body lying on a walkway outside Cano's residence and called 911. The body was C., who had been shot and was dead when police arrived. Officers found and confiscated 569 pounds of marijuana from Cano's laundry room. Police also found signs of forced entry into that room. Martinez's fingerprints were subsequently discovered on some plastic garbage bags covering the marijuana.

¶ 5 Martinez was charged with first-degree felony murder, attempted aggravated robbery, and second-degree burglary.¹ He testified at trial that his fingerprints were on the garbage bags because he had placed his dirty clothes in them and his girlfriend had done laundry at Cano's residence. He also claimed T. and C. had left him downtown during the lunch hour and he eventually had taken a bus home after learning he had been fired from his job. Martinez testified he had first learned of the homicide from a television news report that night and denied having been at Cano's residence at all that day or having participated in any burglary, theft of marijuana, or shooting there. After a seven-day trial, the jury found Martinez guilty of second-degree burglary but acquitted him of felony murder.² This appeal followed.

Discussion

I. Admissibility of inmate's testimony

¶ 6 Martinez first contends the trial court erred in denying his pretrial motion to preclude the testimony of H. Jones, a fellow jail inmate, about statements Martinez had made while in jail awaiting trial. The day after his arrest, on September 28, 2005, Martinez was taken to the Pima County Jail and placed in a cell adjacent to Jones, an inmate charged with armed robbery and aggravated assault. Within an hour after Martinez's arrival, Jones had a scheduled meeting at the jail with his attorney. Jones told his counsel that the man in the cell next to him, Martinez, had been discussing his case with Jones. After the meeting, Jones's attorney contacted the prosecutor about arranging a "free talk" with Jones.³ Jones was then returned to his same cell.

¶ 7 The next day, Jones's change-of-plea hearing was continued because "extraordinary circumstances exist and delay is indispensable to the interests of justice." The free talk between Jones and a police detective occurred on October 14, 2005. Jones was relocated to another jail cell about a week later. Thereafter, the prosecutor decided to use Jones as a witness in this case in exchange for lowering the possible sentencing range Jones would face in his own case. Jones ultimately was offered and accepted a revised plea that reduced his maximum exposure to prison by eleven years.

¶ 8 In July 2006, Martinez moved to preclude Jones's testimony, arguing that Jones had acted as a state agent in obtaining incriminating statements from Martinez, thus violating his Sixth Amendment right to counsel. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The trial court held an evidentiary hearing, at which Jones and Martinez testified. Jones testified Martinez had started "spilling his guts" "[a]lmost immediately" when Martinez first arrived at the jail. According to Jones, he and Martinez had communicated regularly through the air vents from that day until the free talk in October. Jones testified no one from the state had asked him to seek information from Martinez and his counsel testified she had not given him any direction either.

¶ 9 At the hearing, Martinez contradicted Jones's testimony, explaining Jones had initiated their first conversation through the vents by asking Martinez why he was in jail. According to Martinez, Jones also initiated the later conversations. The trial court later denied Martinez's motion to preclude, ruling Jones's testimony admissible because he had not acted as a state agent when he spoke with Martinez. At trial, Jones testified Martinez had told him he had forcibly "broken into" Cano's residence, taken some marijuana and, that during "a struggle" inside the residence between T. and C., C. had been shot. Martinez denied having made any incriminating statements to Jones.

¶ 10 As he did below, Martinez contends Jones's testimony about Martinez's statements violated his Sixth Amendment right to counsel. Generally, we review a trial court's ruling on the admission of evidence for an abuse of discretion. State v. Roscoe, 184 Ariz. 484, 491, 910 P.2d 635, 642 (1996); State v. McCurdy, 216 Ariz. 567, ¶ 6, 169 P.3d 931, 935 (App.2007). But we review de novo alleged violations of one's constitutional right to counsel. State v. Boggs, 218 Ariz. 325, ¶ 50, 185 P.3d 111, 122 (2008); State v. Rasul, 216 Ariz. 491, ¶ 4, 167 P.3d 1286, 1288 (App.2007).

¶ 11 The Sixth Amendment right to counsel is triggered "at or after the time that judicial proceedings have been initiated." Fellers v. United States, 540 U.S. 519, 523, 124 S.Ct. 1019, 157 L.Ed.2d 1016 (2004); see also State v. Moody, 208 Ariz. 424, ¶ 65, 94 P.3d 1119, 1140 (2004) (right to counsel attaches at critical stage of criminal proceedings). The parties do not dispute that occurred in this case on September 28, 2005, when the state filed an interim complaint against Martinez after his arrest. Under Massiah, the state violates a defendant's right to counsel "when it deliberately elicit[s] incriminating information from an indicted [defendant] who was entitled to assistance of counsel." State v. Berndt, 138 Ariz. 41, 44, 672 P.2d 1311, 1314 (1983); see also State v. Smith, 107 Ariz. 100, 103, 482 P.2d 863, 866 (1971). Police may not "use a paid informant-prisoner to surreptitiously elicit incriminating information" once the right to counsel has attached. Berndt, 138 Ariz. at 44, 672 P.2d at 1314; see also United States v. Henry, 447 U.S. 264, 270-71, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980); Massiah, 377 U.S. at 206, 84 S.Ct. 1199.

¶ 12 The state, however, only violates a defendant's right to counsel if the informant is acting as a state agent when he obtains the statements. See Smith, 107 Ariz. at 103, 482 P.2d at 866 (state must actively enter picture to obtain desired information); see also State v. Ferrari, 112 Ariz. 324, 331, 541 P.2d 921, 928 (1975); State v. Jensen, 111 Ariz. 408, 412, 531 P.2d 531, 535 (1975). Thus, Martinez "must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." Kuhlmann v. Wilson, 477 U.S. 436, 459, 196 S.Ct. 2616, 91 L.Ed.2d 364 (1986); see also State v. Kemp, 185 Ariz. 52, 58, 912 P.2d 1281, 1287 (1996). Based on the record and applicable law, we cannot say the trial court erred in finding "insufficient evidence to conclude that the State more likely than not encouraged or directed ... Jones to acquire information from [Martinez] prior to [the free talk on] October 14, 2005."

¶ 13 Martinez asserts, however, either an "implied or express" agency relationship was created on September 28, when Jones met with his attorney, because that same day the prosecutor and lead detective in Martinez's case were contacted and Jones "receiv[ed] a benefit" the next day when his case was continued.⁴ Additionally, Martinez emphasizes the following facts: Jones remained in the same cell adjacent to Martinez from September until a week after the free talk; the trial court found Jones must have obtained additional information from Martinez after September 28; Martinez testified Jones had initiated the conversations; and some testimony by Jones's counsel suggested the state disclosed Jones as a witness before his free talk on October 14.⁵ In response, the state points out Martinez initiated conversation with Jones by "spilling his guts" about his case; the state "did not even know what information [Jones] had to offer until after the free talk"; and the state never communicated with Jones on or after September 28 until the free talk in October and did not direct or encourage Jones to elicit more information from Martinez.

¶ 14 We view the evidence adduced at the hearing on Martinez's motion to preclude in the light most favorable to sustaining the trial court's ruling. See State v. Weekley, 200 Ariz. 421, ¶ 3,...