Martinez v. State

611 P.2d 831, 1980 Wyo. LEXIS 274

• Court: Wyoming Supreme Court
• Decided: May 22, 1980
• Docket: 5212
• Status: Published

Opinions

ROONEY, Justice.

A jury found defendant-appellant guilty of violating § 31-11 -102, W.S.1977, unauthorized use of a motor vehicle. He was sentenced to imprisonment for not less than two years and not more than four years. He appeals from the judgment and sentence, alleging the commission of error in allowing the use of a deposition in lieu of the appearance of the witness at the trial.

We affirm.

Two police officers answered a disturbance call at the Lakeway Bar in Green River in the early morning hours. They left their police car in the bar parking lot with the motor running. When they returned to the parking lot a few minutes later, the car was gone. Several hours later, it was found abandoned in a ditch.

Trial testimony reflected that Pam Ter-wey and two companions left the bar at about the time the police arrived. The two companions returned to the bar to talk to the police, but Pam Terwey remained in the parking lot. Appellant left the bar after the police arrived; and twenty to thirty seconds later, loud revving noises of a car engine were heard, and noises of tires grabbing the pavement were heard. No one else left the bar during the pertinent time. The two police officers and one of Pam Terwey’s companions saw no other person in the vicinity of the bar at the time.

The issues on appeal concern the deposition testimony of Pam Terwey. A few hours after she and her two companions left the bar, they were stopped at a roadblock. She then stated that she had seen appellant take the police car. On July 10, 1979, the prosecution moved the court for an order to take her deposition for use at the trial in lieu of her appearance inasmuch as she had recently sustained a skull fracture and other injuries and because her doctor had advised that she not be brought to court for at least six weeks. The trial court granted the motion and ordered the deposition to be taken at the residence of the witness. The deposition was taken on July 13,1979, but it was taken at the courthouse.

In her deposition, the witness testified that the only advice given her by her doctor was “not to run around, * * * not to walk around, stay at home.” With reference to the testimony expected by the prosecution to the effect that she had seen appellant take the car, she acknowledged that she had so told the police but changed her statement and said that she did not see him do so. The pertinent deposed testimony was as follows:

On direct examination:

“Q. After this happened, after he passed you what happened then?

“A. I don’t know. I didn’t see. I was facing the other way.

“Q. Did you notice the police car missing?

“A. Yeah, after about — after I turned around about three minutes later.

“Q. Had anyone else come out of the Lakeway at that time?

“A. No.

“Q. Had you seen anyone else in the area?

“A. No.

* * * * # *

“Q. Did you talk to Detective Jaramillo that night?

“A. Yeah.

“Q. What did you tell him?

“A. I told him — I don’t know.

“Q. Do you remember what you told him, approximately?

“A. No, not really.

“Q. Was that conversation recorded?

“A. Yeah.

“Q. Did Detective Jaramillo ask you to make an identification of an individual at the sheriff’s office?

“A. Yeah.

“Q. How did that take place?

“A. What do you mean how it took place?

“Q. Where were you and where was that individual and where was Detective Jaramillo?

“A. We were in the sheriff’s office, the sheriff’s thing over there.

“Q. How close were you to the individual?

“A. When?

“Q. When you identified him?

“A. I don’t know.

“Q. Was he standing in front of you? “A. Yeah.

“Q. Did you identify him?

“A. Yeah.

“Q. Was that individual the same one that you saw take the car?

“A. I didn’t see him take the car, but it was the same one I seen at the Lakeway.

“Q. That passed you on the corner?

“A. Yeah.

“Q. Is this the man you saw that night (walking over to an individual sitting in the room.)

“A. It’s the one I seen in the bar.”

On cross-examination:

“Q. Okay. What happened next? You stated that the police officers are in there talking and you are outside and Sam came out?

“A. Yeah.

“Q. Okay. What happened then?

“A. Then he came out and he walked past, and I was facing this way (indicating) towards the door.

“Q. And he walked past you?

“A. Yeah.

“Q. Did you hear something leave?

“A. No.

“Q. And you are within how many feet? I think that is about fifteen feet.

“A. Probably about five feet.

“Q. Of the car?

“A. Oh, it was probably about two feet away from me.

“Q. And you don’t hear the car leaving at that time?

“A. No.

“Q. What did you do then?

“A. After about three minutes I went back in and then we left.

******

“Q. What happened when you talked to Mr. Jaramillo?

“A. He just asked—

“Q. What did he ask you?

“A. About what happened there and — I don’t know.

“Q. Do you remember what you told him that night?

“A. Yeah.

“Q. Is it any different than what you have said today?

“A. Yeah.

“Q. In what respect?

“A. I don’t know.

“Q. Well, you know it is very important not only to the defendant but also to the State. Do you know what the differences were in the story?

“A. Yeah.

“Q. What are they?

“A. I told him that I seen him.

“Q. That you had seen whom?

“A. I seen him take the car.

“Q. But you are saying here now that you didn’t see him?

“A. Yes.

“Q. Okay. Were you telling the truth then or are you telling the truth now?

“A. I am telling the truth now.

“Q. You never actually saw Sammy take the car?

“A. No.

“Q. You had your back to the—

“A. I was facing this way (indicating).

“Q. You were walking away. You had your back to him?

“A. Yeah.

“Q. You didn’t hear a car leave?

“A. No.”

Appellant then filed a motion for an order denying the use of the deposition at trial. He argued that a showing had not been made of the necessity for using the deposition, and that he was entitled to personal confrontation and examination of the witness before the judge and jury. The court did not rule on the motion until it allowed its use at the trial which was held on July 17, 1979.

However, before the deposition was offered as evidence at the trial, Officer Lance Barr testified that he had a conversation with Pam Terwey and two other bar patrons at a roadblock which had been set up. He testified for the prosecution in part as follows:

“Q. What did you ask them?

“MR. BATH: Your Honor, I object as he’s asking for hearsay.

“THE COURT: He may answer the question when he asked them.

“Q. (By Mr. Reese) What in fact did you ask those three individuals?

“A. I asked if they knew who took the police car.

“Q. And what did you do as a result of that conversation?

“A. I got on the radio to Sergeant Carter and told him what I’d heard.

“Q. And what did you tell him to do? “A. I told him to pick up and hold Sammy Martinez.

“Q. What else did you do as a result of that conversation?

“A. I asked the three individuals if they would come to the Sheriff’s Office and talk to a Detective and give a statement.”

On cross-examination:

“Q. Did any of the three people indicate to you they had seen Sammy Martinez drive away with that car?

“A. Yes, they did.

“Q. Which one?

“A. Pam, the girl.

“Q. You are aware, are you not, that I took Pam’s deposition — at least the State took her deposition- — and I was present?

“A. That’s what I heard.

“Q. That we have her deposition, a sworn statement, under oath, cross examination, and all that, and she states that she did not see anyone drive that car away?”

At this point of the trial, appellant apparently had decided that it was favorable to him to have placed before the jury the deposition recantation by Pam Terwey of her statement that she had seen appellant take the car. Nonetheless, during the following redirect examination of Officer Barr, he objected as indicated:

“Q. When you talked to Pam Terwey at the road block, what did she say to you?

“MR. NORDSTROM: We object, Your Honor.

“MR. BATH: Yes, we do, Your Honor. It is hearsay and particularly in light of the fact that they don’t intend to call Pam Terwey here in person to this trial. They planned to use her deposition at trial, but they don’t plan to call her. “MR. JAMES: Your Honor, they brought that up and asked what Miss Terwey said to the officers here. I think we have got the right to cross examine and make clear what she did say and also res gestae in exception to the Hearsay Rule. It happened right around the time that the car was actually taken, so that Pam Terwey’s statement made at that time would probably be more reliable than they were under deposition.

“MR. BATH: We are put in the position that if they don’t intend to call her to trial, to not have an opportunity to cross examine, because the deposition was taken Friday which has no indication of what we’re talking about here today.

“THE COURT: The fact remains that the Defense brought out what she told him before in their direct examination.

“MR. BATH: That’s right, to protect herself is the same reason as our objection.

“THE COURT: Well, if you brought it out, I think they have a right to persue [sic] it. You may continue.”

Barr then testified that Pam Terwey told him she had seen appellant “come out of the bar, get in the car and drive off,” and that she “identified the clothes that he was wearing.”

One of Pam Terwey’s two companions that night, Charles Leasor, testified without objection that Wayne (the other companion) told him that “Sammy had taken the car,” and that Pam Terwey also told him that “Sam had taken the car.”

Although at that point in the trial it would seem that the prosecution would have more to lose than to gain from use of Pam Terwey’s deposition, the prosecution then offered it into evidence. And although it would seem that appellant would be benefited by Pam Terwey’s denial of the truth of her previous statement that she had seen appellant take the car, appellant did not subpoena her as his witness and attempt to have her present at the trial in that capacity, and he again objected to the introduction into evidence of the deposition containing such denial. The deposition was, nonetheless, admitted and it was read to the jury.

Thereafter, without objection, Detective Joe Jaramillo testified that he took a “taped statement” from Pam Terwey on the night the police car was taken, in which statement she gave him a description of “what she observed.” He further testified that she made a personal identification of appellant “as having taken the vehicle.”

Appellant framed the issues on appeal as: “1. Whether, under Rule 17(a) of the Wyoming Rules of Criminal Procedure, an insufficient showing that a witness is unable to attend a trial is made by the bald assertion that a doctor has advised that the witness not be brought into court for at least six (6) weeks.

“2. Whether, in a criminal case, there was insufficient justification for a trial court, consistent with the U. S. Constitution, to permit the prosecution to use a material witness’s deposition in place of her live testimony at trial, when the prosecution merely asserted that the witness’s doctor advised that she not testify in court for at least six (6) weeks.”

BURDEN OF PROOF UNDER RULE 17(a), W.R.Cr.P.

Appellant recognizes that the propriety of the taking of a deposition of a witness in a criminal trial and the conditions under which such can be taken are set forth in Rule 17(a), W.R.Cr.P.:

“(a) * * * If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion of any party and notice to the other parties order that his testimony be taken by deposition * *

Appellant did not object to the taking of the deposition. It was not until after it was taken that he objected to its use. His objection to the use of the deposition was founded on the contention that Pam Terwey was able to attend the trial and testify in person. It is noted that the only showing required by Rule 17(a) for the taking of a deposition with respect to the ability to attend the trial is that the witness “may be unable to attend” or may be “prevented from attending.” The recitation by the prosecution that Pam Terwey received a skull fracture and other injuries and that her doctor advised that she not be brought to court for at least six weeks was sufficient to satisfy the requirement of Rule 17(a) relative to a showing that the witness may be unable to attend the trial when no objection or counter recitation to the taking of the deposition was made by appellant.

Appellant does not contest the existence of the other requirements set forth in Rule 17(a) for the taking of the deposition. Appellant refers to Pam Terwey as a “material witness” and recites “the importance of Pam Terwey’s testimony.” The materiality of such testimony as such appeared at the time of the taking of the deposition is evidenced by the fact that she had stated that she was an eyewitness to the taking of the car. This, in turn, indicated the necessity for taking the deposition to prevent a failure of justice. The motion to take the deposition was made on notice to appellant, and the order to take it was made after the information was filed.

All of the requirements of Rule 17(a) for the taking of the deposition were adequately met.

CONFRONTATION OF WITNESS

In support of his second issue on appeal, appellant argues that the confrontation clause of the Sixth Amendment to the United States Constitution was violated by reception of the deposition of Pam Terwey into evidence inasmuch as he contends that she was available to testify at the trial.

Rule 17(e), W.R.Cr.P. authorizes the use of a deposition at trial if the witness “is unable to attend or testify because of sickness or infirmities.” However, such use is also restricted by the confrontation clause of the Sixth Amendment.

“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *_» sixth Amendment, United States Constitution.

At an early date, the United States Supreme Court stated:

“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. * * *” Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 339, 39 L.Ed. 409 (1895).

But the Court went on to say that the use of prior testimony of an unavailable witness does not violate the confrontation clause. It said at page 243 of 156 U.S., 15 S.Ct. at page 340:

“* * * But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. * * *”

More recently the United States Supreme Court has recognized that the confrontation clause is not violated by admission into evidence of prior testimony of an unavailable witness if the prior testimony bore an “indicia of reliability” sufficient to afford the trier of fact a satisfactory basis for evaluating the truth of the prior testimony. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). The indicia of reliability is satisfied when the prior testimony was under oath, when defendant was represented by counsel, when the counsel could and did cross-examine the witness, and when the cross-examination which would be conducted at the trial would not touch upon any new and significantly material line of inquiry. Man-cusi v. Stubbs, supra. These factors were present in this case. Pam Terwey was under oath. Appellant was represented by counsel. The cross-examination by this counsel was effective. It brought forth a recantation by her of her previous identification of appellant as the one who had taken the car. A new, material line of inquiry was not indicated. This right to cross-examine rather than the right to observe the witness is the essential right secured by the confrontation clause. Government of Canal Zone v. P. (Pinto), 5th Cir. 1979, 590 F.2d 1344; Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

But before these factors come into play, the witness must be unavailable, and the unavailability of Pam Terwey is the status questioned by appellant on this appeal. The determination of the availability or unavailability of a witness so as to allow his deposition to be used in a trial in lieu of his appearance rests within the sound discretion of the trial court and is reviewable only for abuse of such discretion. United States v. LaFatch, N.D.Ohio, 382 F.Supp. 630 (1974); United States v. Bell, 2nd Cir. 1974, 500 F.2d 1287; United States v. Bello, 5th Cir. 1976, 532 F.2d 422; United States v. Amaya, 5th Cir. 1976, 533 F.2d 188. See 23 Am.Jur.2d Depositions and Discovery §§ 119, 120 (1965). The trial court may consider the contents of the deposition itself in making this determination. Colonnades, Inc. v. Vance Baldwin, Inc., Fla.App., 318 So.2d 515 (1975). The trial court was here presented with an allegation that the witness had suffered severe head injuries and that her physician had instructed that she not appear in court for six weeks. She stated in her deposition that her physician told her “not to run around, * * * not to walk around, stay at home.” She disobeyed these instructions by going to the courthouse for the deposition. The fact that she did so is the basis for appellant’s contention that she was available for trial and that the trial court abused its discretion in finding otherwise. In making a decision that the witness is properly available, the trial court must contemplate the risk to which he would subject the witness’ health if he insists on her presence. The fact that the witness disobeyed her physician’s instructions to stay home does not relieve the trial court from its responsibility to give credence to such instructions in a given case.¹ Further, there is considerable difference between giving a deposition in the presence of two or three lawyers and a court reporter and under informal circumstances and that of testifying in court before judge, jury, the lawyers, reporter, bailiff, clerk and spectators and with court formalities. This difference may not be material to one with a broken arm or similar disability, but it may be very pertinent to one with a head injury.

A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. Eager v. Derowitsch, 68 Wyo. 251, 232 P.2d 713 (1951); Anderson v. Englehart, 18 Wyo. 409, 108 P. 977 (1910); DiPalma v. Wiesen, 163 Conn. 293, 303 A.2d 709 (1972); In re Estate of Horman, 265 Cal.App.2d 796, 71 Cal.Rptr. 780 (1968). As already indicated, the determination of whether or not a witness is unable to attend or testify at a trial because of sickness or infirmities pursuant to Rule 17(e) is within the sound discretion of the trial court. The trial court did not here abuse the exercise of that discretion.

Affirmed.²

1 . No consideration is here given to the contents of the July 13, 1979 letter from the physician which supported the allegations made in the prosecution’s motion for an order to take the deposition inasmuch as it was not filed until July 19, 1979.

2 . Our disposition does not reach appellee’s contention that if error exists, it is harmless.