State v. Martinez, 9647

CourtUnited States State Supreme Court of Idaho
Writing for the CourtTAYLOR; McQUADE
Citation403 P.2d 597,89 Idaho 129
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Robert Lee MARTINEZ, Defendant-Appellant.
Docket NumberNo. 9647,9647
Decision Date25 June 1965

Thomas A. Mitchell, Coeur d'Alene, for defendant-appellant.

Allan G. Shepard, Atty. Gen., and Thomas G. Nelson, Deputy Atty. Gen., Boise, Richard G. Magnuson, Pros. Atty., Wallace, for plaintiff-respondent.

TAYLOR, Justice.

On the evening of November 1, 1964, defendant (appellant), aged 22 years, in company with another boy, aged 17 years, and two girls, both aged 16 years, in defendant's car, drove to a secluded spot near Mullan, where a beer drinking and 'necking' party ensued. The party lasted three or four hours, during the latter part of which time the prosecutrix claimed she was raped by the defendant. Upon being returned to her home in Mullan she did not complain to per parents because she was afraid of her father. After the father's departure for work the next morning, the prosecutrix told her mother of the incident. She was taken to the sheriff's office and from there to a doctor's office where she was examined by the physician for evidence of sexual intercourse.

On that date, November 2nd, defendant was charged with rape, arrested and taken before a magistrate. He waived preliminary hearing and was held to answer the charge in the district court. During the investigation of the alleged crime, tape recordings were made of statements made by the other three members of the party engaged in the affair of November 1st.

November 6th, defendant was brought before the district court for arraignment. Being advised by defendant that he had no attorney, nor funds to employ an attorney, the court informed defendant an attorney would be appointed to represent him, and the arraignment was continued to another day. The attorney appointed was Mr. Eugene F. McCann, who had had twenty-five years experience as a general practitioner, and at sometime in the past had served as prosecuting attorney of Shoshone county.

Arraignment was resumed on November 16th with defendant and his counsel in court. Defendant's counsel waived the reading of the information and acknowledged receipt of a copy thereof. The court then advised defendant of the charge against him and of his right to a twenty-four hour delay before entering his plea; to which he replied, 'Wish to enter a plea at this time.' Being asked to state his plea, defendant replied, 'Guilty, your Honor, but I do not recall the incident now'; to which the court responded:

'THE COURT: We will get into that in a minute. Would the Clerk please enter the plea of guilty to the charge of rape. At this time we can proceed with the pre-sentence hearing or do you wish to take a delay on that?

'MR. MAGNUSON: I am prepared to continue, your Honor.

'MR. McCANN: I think Mr. Martinez would like to have it over and done with today rather than delay.

'THE COURT: You have the right to a 48 hour delay before sentence is passed. Do you wish to waive that time?

'A Yes.'

Mr. Magnuson, the prosecuting attorney, then made a statement of the facts as he understood them. The result of the medical examination of the prosecutrix was related to the court by the prosecuting attorney as follows:

'Medical examination was performed by Dr. A. M. Peterson of Wallace, Idaho, and if he were here his testimony would be that her hymen had been previously reptured and he took a vaginal smear but it did not show the presence of any sperm or semen but that there was irritation in her vaginal area which was of quite recent origin.'

Defendant's counsel then inquired of the prosecutor:

'MR. McCANN: Are you making any claim the rupture of the hymen was recent?

'No, I believe the doctor would testify that happened sometime before but there was an irritation of her vaginal area which was of very recent origin.'

Defendant's counsel then addressed the court, 'Rather than make a statement, I would like to call the defendant to the stand.' The defendant was then sworn and testified on his own behalf. During the course of his examination he testified that his home was in Butte, Montana; that he had come to Idaho about June 15, 1964, seeking employment and was at the time employed by the Sunshine Mining Company; that his purpose was to raise money to go back to school for his last year of college; that he had completed three years of college study in pharmacy at the Montana State College, Bozeman, Montana, during which time he had maintained a student rating of 'A' average; that he had never been in serious trouble before; that the present was his third arrest, the first was for a traffic violation in Butte, Montana, and the second for contributing to the delinquency of minors. He explained the latter charge by saying that he had loaned his car to three boys to attend a drive-in theater, after which beer was found in the car; that he had not been present at the time because he was working on the night shift at the mine; that if he were paroled and permitted to do so he would return to Montana, borrow the necessary funds and reenter the Montana State College to complete his course in pharmacy.

Under cross-examination by the prosecuting attorney as to why he did not remember the incident, he testified he could not explain why he could not remember; that he was not insane nor intoxicated, and 'I don't know, I can't seem to remember. I have laid awake nights trying to think of it, it just doesn't come.'

'Q. How much beer did you have to drink that evening?

'A I had four bottles myself.'

The court then heard the prosecuting attorney and defense counsel on defendant's plea for clemency. Afterwards the court informed the defendant that he was persuaded by his college background and his grade average of 'A' in pharmacy over a three-year period, to order that sentence be withheld for a period of one year during which time the defendant would be placed on probation on condition that he return to Montana and to the Montana State College at the earliest opportunity; supervision of his probation to be arranged between the state board of corrections of Idaho and the proper Montana authorities; and that defendant be held in custody until these arrangements were made. Order was made and entered accordingly.

The next day, November 17, 1964, at 3:25 p. m., the defendant, with his counsel, was again brought before the court. The court then advised defendant that the court had been informed that some of the statements he had made the day before were false, and

'For that reason I have asked the defendant to be brought back into court and I think it is only fair at this time, without going into the question of whether or not these things are true or not true, to give the defendant the opportunity to withdraw his plea of guilty if he so desires because if these matters had been misrepresented to the court of course I would have no alternative but to impose a different type of sentence. Are you aware of what I am talking about Mr. Martinez?

'A Yes, I am.

'THE COURT: I will give you that opportunity at this time if you so desire to withdraw your plea or do you wish to let it stand as it is?

'A Could I talk to my lawyer?

'THE COURT: Yes. (Defendant consulted with Mr. McCann). Do you wish to take advantage of that offer?

'A No, your Honor, I wish to leave the plea as it is.'

The prosecuting attorney then advised the court that he had been informed by the office of the registrar of the Montana State College in Bozeman that no one by defendant's name had attended that college and that no school of pharmacy was conducted there; that he inquired of the Montana State University at Missoula where a school of pharmacy was conducted and was advised that on one by defendant's name had ever been in attendance there. The prosecutor further advised the court that the records of the Sunshine Mining Company revealed that defendant worked the day shift, not the night shift, on the day of the alleged offense of dispensing beer to minors at the drivein theater. On objection by defendant's counsel telegrams from the two Montana schools and a copy of a record of the Sunshine Mining Company were excluded from evidence, as hearsay.

The court then advised the defendant that the court would vacate the order of parole and withhold sentence temporarily for further investigation; that he need not respond to the charges made by the prosecuting attorney; and that, if he did so, any statement or testimony he might give may be used against him at a future time. The defendant was then sworn and the following proceedings were had:

'THE COURT: Mr. McCann, before he testifies, do you have any objection as technically representing him at this time, to his testifying?

'MR. McCANN: Well, your Honor, I am in a very peculiar position. I wish to ask the court to allow me to withdraw from this and if Mr. _____, the defendant here, desires to go any further in the matter, that the court appoint another attorney because I don't feel, from what I know of this, that I could put in a defense that I believe would be helpful to the defendant. Now, I don't wish to prejudice his case in any way with the court but I just have that feeling.

'THE COURT: Well, I appreciate that. Actually at this stage of the proceeding there is no legal requirement the defendant be represented by an attorney, it is merely a post plea proceeding and depending on his testimony I certainly would consider your request to withdraw but I think he should be allowed to testify if he desires.

'MR. McCANN: If he desires. He isn't doing this upon my advice.

'THE COURT: If both counsel have no objection, possibly I could ask a few questions and if there is anything else you wish to ask we can take it up from there.

'THE COURT: Q While these exhibits, Mr. Martinez, haven't been admitted in evidence, I am sure you are aware of the fact the Prosecutor did call the registrar at Montana State College who advised him that you...

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