State v. Martinez, 20001128-CA.

• Decision Date: 25 April 2002
• Docket Number: No. 20001128-CA.,20001128-CA.
• Citation: 2002 UT App 126,47 P.3d 115
• Parties: STATE of Utah, Plaintiff and Appellee, v. Angel Joseph MARTINEZ, Defendant and Appellant.
• Court: Utah Court of Appeals

47 P.3d 115

2002 UT App 126

STATE of Utah, Plaintiff and Appellee, v. Angel Joseph MARTINEZ, Defendant and Appellant.

No. 20001128-CA.

Court of Appeals of Utah.

April 25, 2002.

Stephanie Ames and Gregory G. Skordas, Gustin, Christian, Skordas & Caston, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee. Before JACKSON, P.J., BILLINGS, Associate P.J., and DAVIS, J.

OPINION

DAVIS, Judge:

¶ 1 Appellant Angel Joseph Martinez (Martinez) appeals his convictions of aggravated burglary and murder. Martinez challenges whether the trial court's determination that the eyewitness identification of Martinez as the driver of a getaway car was constitutionally reliable, whether the trial court erred in denying Martinez's Motion for a Mistrial, and whether the State failed to provide sufficient evidence for a jury to convict Martinez of murder and aggravated burglary. We affirm.

BACKGROUND¹

¶ 2 On August 3, 1999, two men with guns ran into the home of Matthew Moya (Moya). One of the intruders wore clothing that covered his face and the other wore sunglasses. The intruders ordered Moya's fiancé, Anita Archuleta (Archuleta), brother-in-law, and three young children to lie down on the floor. One of the intruders then went into the back room where Moya was sleeping. A struggle ensued between Moya and the intruder. During the struggle, the unidentified intruder shot Moya twice and Moya fell to the floor. As the two intruders were exiting the home, "they looked back at [Moya] and shot him one more time." Moya died as a result of the shooting.

¶ 3 Earlier that day, about 3:20 p.m., Moya and his family had returned home from the grocery store. At about 3:30 p.m., Jay Ingleby (Ingleby) and Mrs. Dikki Jo Black (Black), who was picking up her children from a babysitter's home, saw two men exit an old green car and run toward the Moya home. Ingleby thought it was strange that one of the men was wearing a large, hooded sweatshirt that concealed his face because it was 97 degrees outside. Just after Ingleby lost sight of the two men, he heard shots. He then noticed the same two men running from the Moya residence and saw one of the men stuff a revolver into his waistband. Just ahead of the men, Ingleby noticed an old, green Cadillac driving slowly up the block. He watched as the rear doors opened, the two men jumped into the back seat, and the car sped from the scene. Shortly thereafter Ingleby found himself calming Archuleta, who said Moya had just been shot.

¶ 4 Black was standing in her babysitter's front yard where she saw the two men jump into the green car as it slowed down. At that time Black made eye contact with the driver for between ten to fifteen seconds. Initially, Black told the police that the man driving the car and the two men the driver picked up were between eighteen and twenty-five, Hispanic, with darker skin, short black hair, and dark eyes. Black stated that she was not good at the "age thing" and that the age range was for the group as a whole and did not specify an age for the driver of the vehicle. In addition, Black told the officer that the driver had "dark, shiny skin," but was not sure about the "shiny part."

¶ 5 Before presenting Black with a photo spread, Officer Yoshikawa telephoned and asked whether it was possible that the person she saw driving the car could be older. Black indicated that it was possible. Two days later, Detective Yoshikawa arrived at Black's home and presented her with a photo spread that in addition to a photo of Martinez, contained five other men in their thirties resembling him. Black took her time reviewing the photographs and identified Martinez as the driver of the car. Black testified that she was unsure about the photograph until she saw a color copy from which she recognized his eyes, face, hairline, and the expression on his face. In addition, she pointed out how the color photograph captured the differences between his two eyes, "as if they could have belonged to two different people." In court, Black identified Martinez as the driver she saw on the day of the shooting based on his unique eyes and hairline. ¶ 6 The car seen fleeing the scene was an older model, green, four-door Cadillac with Utah Centennial plates. Ingleby specifically observed that the car was two-tone green, dark green on top and a brighter lime green on bottom. Ingleby also noticed that "on the back by the back bumper and taillights [there were] some rust spots across the back." Ingleby described the car as nice looking in pretty good condition.

¶ 7 Martinez was arrested and charged with aggravated burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-203 (1999), and murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (1999). Notice was given that both offenses were subject to enhancement penalties under Utah Code Ann. § 76-3-203 (1999), commission of offenses with a dangerous weapon, and Utah Code Ann. § 76-3-203.1 (1999), commission of offense in concert with two or more individuals.

¶ 8 A hearing on Martinez's Motion to Suppress Witness Identification was held on January 14, 2000. Martinez was present and represented by counsel. Testimony was received from Detective Yoshikawa and Black. The court, being "aware of the criteria set forth in State v. Long, [721 P.2d 483 (Utah 1986)], for consideration of eyewitness testimony," denied the Motion and ruled orally that the procedure was not impermissibly suggestive, stating "[o]n the contrary, it's sort of the textbook example of what one hopes an officer will do." In its written order, the court concluded that the "manner in which the photo spread was prepared by Detective Yoshikawa and presented to Mrs. Black establishes that it was not unduly suggestive."

¶ 9 While Martinez was being held at Oxbow jail following his arrest, he confessed to Roger Ashworth, another inmate in the jail, to participating in the offense.

¶ 10 At trial, Roger Barney testified that in April 1999 he sold his father's 1977 two-toned green Fleetwood Cadillac to Martinez. At the time of the sale, the car was in "excellent shape except on the rear panel it was starting to get a little rust." Barney did not see the car again until it was at Evans & Sons Automotive, where it was smashed and crushed on a pile of cars.

¶ 11 Steven Evans, who owns Evans & Sons Automotive, testified that on or about August 3, 1999 between 4:00 and 5:00 p.m., Martinez drove the Cadillac to Evans & Sons and told the owners to scrap the car out because it had a bad engine and was making noise. In the past, Martinez had car engines replaced by Evans & Sons and Evans thought it out of character for Martinez to junk the car without first having a diagnosis done. Two months later, at the request of the prosecution investigator, Evans removed the Cadillac from the junk pile and found that the engine ran "okay" and "sounded fine" when he replaced the battery and starter motor. Evans's son Brad confirmed that the engine did not sound as though it was "blown" when it was later tested. After he heard the motor, Brad was surprised that the car had been junked.

¶ 12 On cross-examination by defense counsel, Archuleta testified that she had given Detective Yoshikawa the name of Jose Nava (Nava) as a possible suspect in the shooting because Moya owed Nava some money in connection with some dealings Moya had with Nava. On re-direct examination, Archuleta stated that Nava was a friend of Moya's because "they called [Moya] like twice before this had happened." She then testified that she knew this because "[Moya] told [her] that Jose [Nava] called." Defense counsel objected to the testimony as hearsay and the objection was immediately sustained. Archuleta later testified, without objection, that it was her understanding that Moya made one of the calls to Martinez.

¶ 13 Martinez then moved for a mistrial based on Archuleta's testimony claiming he was unaware the witness would testify about the nexus between Nava and Martinez. Detective Yoshikawa informed the court that he had interviewed Archuleta about the matter and made a report referencing the telephone conversation. This report was given to the prosecutor, who inadvertently neglected to provide a copy to the defense.

¶ 14 The jury convicted Martinez of the offenses as charged and entered a special verdict, finding that Martinez had committed the murder with a dangerous weapon and acted in concert with two or more individuals in committing both crimes. The trial court sentenced Martinez to consecutive statutory nine years to life prison terms. Martinez appeals.

ISSUES AND STANDARD OF REVIEW

¶ 15 Martinez argues that the introduction of Black's eyewitness identification at trial violated his right to due process of law under Article I, Section 7 of the Utah Constitution and the Fourteenth Amendment to the United States Constitution because the identification was unreliable and impermissibly suggestive. The trial court's decision to admit eyewitness identification evidence is a mixed question of fact and law. The trial court's findings are viewed in the light most favorable to the court's decision and will be reversed "only if they are against the clear weight of the evidence." State v. Ramirez, 817 P.2d 774, 782 (Utah 1991). We review for correctness the trial court's conclusion that the eyewitness identification evidence is reliable. See id.

¶ 16 Second, Martinez argues that the trial court erred in denying his motion for mistrial when the court allowed the testimony by Archuleta to be admitted. "We review rulings on motions for a mistrial based on prosecutorial misconduct [i.e., discovery violations] for abuse of discretion." State v. Reed, 2000 UT 68, ¶ 18, 8 P.3d 1025; see also State v. Harmon, 956 P.2d 262, 276 (Utah 1998)

(stating standard is met only if error is "substantial and prejudicial") (quotations and citations...