State v. Ortiz

Decision Date26 June 1975
Docket NumberNo. 2,CA-CR,2
Citation24 Ariz.App. 192,537 P.2d 29
PartiesThe STATE of Arizona, Appellee, v. Marcos Anthony ORTIZ, Appellant. 555.
CourtArizona Court of Appeals


This is an appeal by defendant, Marcos Anthony Ortiz, from his conviction for exhibiting a deadly weapon other than in self-defense, A.R.S. § 13--916 (Supp.1973), and his subsequent conviction for possession of a pistol by a criminal, A.R.S. § 13--919 (1956). Both convictions arose out of the same occurrence.

Defendant presents two issues for our consideration on appeal. The first is whether the trial judge erred in precluding two defense witnesses from testifying after he determined that they would both invoke the privilege against self-incrimination. The second is whether defendant's conviction for possession of a pistol by a criminal violated the prohibition of A.R.S. § 13--1641 (1956) against different punishments for the same offense.

The operative facts are as follows. Kenneth Pearman, an undercover agent for the Metropolitan Area Narcotics Squad, arranged to purchase heroin from Pat Niemczyk and William Donnini. On October 8, 1974 defendant was seated in the front seat of a car with Niemczyk and Donnini. Donnini was on the driver's side, Niemczyk was in the middle, and defendant was next to the passenger's window. Agent Pearman approached the passenger's window and asked Niemczyk for the heroin he had paid for. When Niemczyk said she did not have it, an argument took place. Pearman testified that during the argument defendant drew a pistol and pointed it in his face.

Three years before these events took place, defendant was convicted of first-degree burglary.

At trial, after the close of the State's case-in-chief, the State moved in limine to preclude Niemczyk and Donnini from testifying for the defendant. The trial judge conducted a hearing on the motion outside the presence of the jury. At this hearing Donnini and Niemczyk indicated they would testify that they had never seen defendant exhibit a gun in a threatening manner. Donnini indicated, however, that he would invoke his self-incrimination privilege in response to any question concerning what happened in the car Niemczyk was willing to testify she was in the car with defendant, but indicated she would claim her self-incrimination privilege in response to questions about anything more specific. 1 Reasoning that Donnini and Niemczyk would be unavailable for cross-examination, the trial court precluded them from testifying. At defendant's subsequent trial for possession of a pistol by a criminal, they were precluded from testifying on the same grounds.

Defendant contends that by precluding the witnesses' testimony, the trial court violated his Sixth Amendment right to have compulsory process for obtaining witnesses in his favor. In support of this contention, he cites Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). We think defendant's reliance on Washington is misplaced. In that case a Texas statute prohibited criminal defendants from offering in their own behalf the testimony of persons charged as principals, accomplices, or accessories in the same crime. Defendant and one Fuller were indicted for the same murder. If the statute had not prevented it, Fuller would have testified that it was he who fired the fatal shot, that defendant tried to persuade him to leave, and that defendant ran away before the fatal shot was fired. The Supreme Court reversed defendant's conviction, stating that the right to present witnesses to establish a defense to a criminal charge is a fundamental element of due process of law. It held that defendant's Sixth Amendment rights were violated:

'. . . because the State Arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.' (Emphasis added) 87 S.Ct. at 1925.

The preclusion of the defense witnesses in the case at bar was not arbitrary. Unlike the witness in Washington, Donnini and Niemczyk would have refused on Fifth Amendment grounds to submit to meaningful cross-examination by the State. The State has a right to conduct a thorough and searching cross-examination of all witnesses for the defense. We do not think Washington stands for the proposition that a defendant's Sixth Amendment right to present...

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1 cases
  • State v. Ortiz
    • United States
    • Arizona Supreme Court
    • February 25, 1976
    ...sentences thereon. This court granted appellant's petition for review. The opinion of the Court of Appeals is vacated. State v. Ortiz, 24 Ariz.App. 192, 537 P.2d 29 (1975). On October 8, 1974, appellant was a passenger in an automobile driven by a William Donnini. He sat on the front seat n......

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