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State v. Martinez

Court of Appeals of Utah

October 18, 2019

State of Utah, Appellee,
Saul Martinez, Appellant.

          Third District Court, Salt Lake Department The Honorable Richard D. McKelvie No. 151907946

          Alexandra S. McCallum, Wojciech S. Nitecki, and Lacey C. Singleton, Attorneys for Appellant

          Sean D. Reyes and Nathan D. Anderson, Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Kate Appleby and Ryan M. Harris concurred.



         ¶1 On a dark and rainy night, Saul Martinez shot at his wife's lover on the side of a road in front of an off-duty police sergeant (Sergeant). Martinez was convicted of attempted murder, aggravated assault, three counts of felony discharge of a firearm, and possession of a dangerous weapon by a restricted person. Martinez appeals, contending that the trial court erred when it permitted the jury to hear arguably inadmissible hearsay testimony. Further, Martinez contends that his convictions for felony discharge of a firearm should be vacated, arguing that they should have merged with his attempted murder conviction. We affirm.


         ¶2 While driving home to Tooele, Utah, from work one night, Sergeant noticed a man (Victim) walking in the heavy rain along the side of the road carrying a gas can. Victim was walking to his car, which had run out of gas. Sergeant picked up Victim in his personal, unmarked truck and drove Victim to his car. As Victim got out of Sergeant's truck, a white SUV pulled up behind them. Victim identified the driver as Martinez and told Sergeant, "This guy wants to kill me." Sergeant responded, "What?" Victim again said, "This guy is going to kill me." Looking in his side-view mirror, Sergeant saw Martinez get out of the SUV and walk toward Victim holding a large, silver handgun. Sergeant yelled at Victim to "get back in the truck." Victim jumped into the truck, and as the two men sped away, Martinez rapidly fired three shots toward Sergeant's truck. All three bullets lodged in the passenger side of the truck where Victim was sitting.

         ¶3 Earlier that day, Martinez had borrowed a white SUV from his neighbor that he never returned. The day after the shooting, police found the SUV abandoned approximately ten miles from the scene of the shooting. Martinez was nowhere to be found at the time, but he was located and arrested four months later in Los Angeles, California. Martinez was charged with attempted murder, aggravated assault, use of a firearm by a restricted person, and three counts of felony discharge of a firearm.

         ¶4 At trial, the jury heard testimony that Martinez and his wife (Wife) were having marital problems. They had been together for sixteen years and had a daughter (Daughter). Around the same time that the couple began having marital problems, Victim and Wife developed a friendship that Victim's work supervisor and Wife's brother (Brother-in-law) believed was romantic in nature, though Victim denied such a relationship. Martinez thought that Victim was trying "to steal [Wife] and [Daughter]." Witnesses at trial testified that on three separate occasions, Martinez either threatened Victim or expressed a plan to kill him.

         ¶5 Approximately one month before the shooting, Victim, Wife, Daughter, and others were eating dinner at a friend's house. Martinez knocked on the door and let himself in without waiting for someone to answer the door. Martinez looked "upset" and, without saying a word, positioned his fingers in the shape of a gun, pointed it at Victim for approximately three or four seconds, and then left with Wife and Daughter.

         ¶6 Three days before the shooting, Victim's co-worker informed him that Martinez was outside of the restaurant where they worked, and Victim told his co-worker to "call the police because [Martinez] had threatened to kill [him]." When Victim finished working, Martinez was still outside the restaurant speaking with Victim's supervisor, who was a friend of Martinez. Victim approached Martinez and asked him if he was "looking for [him] to kill [him]." When counsel inquired why Victim would say that to Martinez, Victim testified, "Because all the people from Tooele, they were telling me that he was looking for me . . . to kill me." Martinez's counsel objected to the answer as hearsay. The court overruled the objection, determining that Victim's statement was not being "offered for the truth of the matter asserted." The prosecutor then repeated his question, and Victim again answered, "Because in Tooele everybody was telling me that [Martinez] wanted to kill me." Victim testified that in response to Victim's inquiry about why he was waiting for Victim, Martinez replied, "No, not now or here at this moment, but I know where you . . . live, and sooner or later I will kill you."

         ¶7 Just hours before the shooting, Martinez told Brother-in-law that he was planning to kill Victim. Brother-in-law testified that Martinez had been drinking when he arrived at Brother-in-law's home and that Martinez was there "to say goodbye" to him and his family. Martinez reported that he was going to be leaving town soon as he "already had everything prepared to be able to kill [Victim]" because he was not going to let Victim "steal" Wife and Daughter from him. Martinez appeared "extremely nervous" and told Brother-in-law "that he couldn't handle everything that was going on, that he had to end all of this." Martinez then showed Brother-in-law his gun and was "very clear" that he wanted to kill Victim and that the reason he had the gun was "to do it." And while Brother-in-law testified that Martinez would occasionally jokingly threaten to kill people, "that day [he] felt that [Martinez] was serious."

         ¶8 Martinez was convicted on all counts. Martinez moved to vacate the three counts of felony discharge, arguing that those convictions should merge with his attempted murder conviction because Martinez attempted to murder Victim by shooting at him and that discharging his firearm was therefore ...

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