Prosecutors again were stymied this week by a reluctant witness in the preliminary hearing of a 17-year-old charged with murder.

So Benjamin Martinez will remain free for now. And unless lawyers can convince a judge to accept as evidence a taped interview, the boy may never face trial on the charge.Prosecutors say Martinez, during a "stare down" near a Smith's grocery store, pulled out a .38-caliber pistol and fired four times at a car driven by Manual Ibarra, 15. One of the bullets struck Ibarra below his left eye. He lapsed into a coma and died four days later.

Two witnesses pegged Martinez from a photo lineup as the triggerman hours after the Aug. 18 shooting. But both seemed to forget what they saw after taking the witness stand two weeks ago.

Thursday's witness simply wouldn't talk about the incident.

"I refuse to say anything, man. I remember, yeah, but I don't want to say anything," replied Jason Martinez when ordered by 3rd Circuit Judge Sheila McCleve to answer questions.

Jason Martinez, 15, was walking with Benjamin during the shooting and was offered immunity from any prosecution in exchange for his testimony. Despite the offer and repeated explanations about what it meant, the boy wouldn't discuss the shooting.

"Do you understand that I can put you in detention for contempt (of court)?" McCleve said, trying to prompt the boy.


Frustrated, McCleve let the boy leave the courtroom. "I'll have to decide later what to do about you."

Prosecutor Greg Bown then tried to question Salt Lake police Detective Chuck Oliver, who interviewed Jason Martinez after the murder. But defense attorney Ed Brass objected, saying anything the officer and taped transcript would offer was only hearsay and therefore not admissible in court.

Brass also argued that his client was being denied his constitutional right to confront his accuser since the state's witness, Jason Martinez, would not testify from the stand.

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The judge ordered the lawyers to submit briefs supporting their positions. A hearing on the matter is scheduled for Jan. 5 at 1 p.m.

Afterward, Bown said he understood the argument against admitting the taped conversation, which may be the only evidence left that could clearly identify Martinez as the shooter.

"That's the system and it's set up the way it is for specific reasons."

He said he hopes McCleve will accept the transcript. If she does, he said, it should be admissible evidence in district court, where the case would be tried before a jury.

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