Fox v. State

• Decision Date: 02 December 1971
• Docket Number: No. 6455,6455
• Citation: 87 Nev. 567,491 P.2d 35
• Parties: Anthony FOX, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 35

491 P.2d 35

87 Nev. 567

Anthony FOX, Appellant, v. The STATE of Nevada, Respondent.

No. 6455.

Supreme Court of Nevada.

Dec. 2, 1971.

[87 Nev. 568] Robert G. Legakes, Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty. and Charles L. Garner, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

MOWBRAY, Justice:

A jury found Appellant Anthony Fox guilty of the unlawful sale of narcotics. He seeks reversal of his judgment of conviction on the ground that the State's two leading witness--Verne Ray Boley, Jr., and his wife, Reiane Boley--are heroin addicts and that they were under the influence of heroin when they gave their testimony to the jury. The sole specification of error reads:

'The testimony of the two key witnesses was incompetent and inadmissible because they were admitted heroin addicts and because they were under the influence of heroin at the time of trial.'

Fox failed, however, to challenge, by proper motion during the trial, Reiane's testimony. The appeal is therefore limited to a determination of whether the district judge committed reversible error in permitting Verne's testimony to stand. Cross v. State, 85 Nev. 580, 460 P.2d 151 (1969); Cranford v. State, 76 Nev. 113, 349 P.2d 1051 (1960).

Verne Ray Boley, Jr., has a long history of narcotics addiction that stretches over a period of 10 or 11 years. In his testimony before the jury, Boley admitted taking heroin at the scene of the controlled purchase that was the basis for the State's charge against Appellant Fox. Boley also admitted taking heroin the evening prior to the day he gave his testimony before the jury. He claimed, however, that he had no remaining effect from the heroin at the time he testified. At this point in the trial, appellant's counsel moved the court to strike Boley's testimony as being incompetent because Boley was under the influence of heroin. The jury was properly excused, and the court examined the witness, Boley, who stated that, while he had some difficulty with times and dates, he remembered the sale in question. During this examination, appellant's counsel asked the court for an order requiring the witness to submit to a physical examination by a physician to determine whether Boley was under the influence of heroin. After extensive examination by counsel and the district judge, the motion to strike Boley's testimony was denied, and also the motion seeking his physical examination.

Questions of the competency of witnesses in criminal trials must be determined in accordance with the general principle enunciated in NRS 175.221, subsection 2:

'The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when otherwise provided by statute, by the principles of the common law as they may be interpreted by the courts of the State of Nevada in the light of reason and experience.'

As this court said in Shuff v. State, 86 Nev. 736, 738, 476 P.2d 22, 24 (1970):

'When the competency of any witness has been questioned, it is within the discretion of the trial court to consider factors relative to qualification and to determine if such person is competent to testify.'

In Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968), this court held that the testimony of a single police informer was sufficient to sustain a conviction for the sale of narcotics. The court, in so holding, ruled that reliance upon the testimony of the informer, who was also a narcotics user, was a matter of credibility and thus within the province of the jury. In Lujan v. State, 85 Nev. 16, 18, 449 P.2d 244, 245 (1969), we held:

'* * * Even if Alexander were an addict, which the lower court found he was not, the uncorroborated testimony of one addict, if believed by the jury, will sustain a conviction. (Citations omitted.)'

'A witness cannot be excluded on the ground that he is a drug addict unless it appears that he was so under the influence of a drug that he was not able to observe what occurred or that his intellect was unbalanced.' (Footnote omitted.) 3 Wharton Cr. Evid. § 758 (12th ed. 1955).

While this court has not ruled on the admissibility of the testimony of an addict-witness who is found to be under the influence of narcotics when testifying, other jurisdictions have considered the problem. In State v. White, 10 Wash. 611, 39 P. 160, 161 (1895), the Supreme Court of Washington considered the testimony of a witness who was 'a confessed opium consumer, who admitted that he was under the influence of opium both at the time of the occurrences to which he testified, and when he was on the witness stand.' The court approved the admission by the trial court of the witness's testimony, noting, however, that such testimony was unreliable andthat juries should be carefully cautioned regarding the credence to be given such testimony.

In State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739 (Ariz.1966), the appellant, who had been convicted of the illegal sale of narcotics, appealed on the ground that the trial court erred in failing to require the witness, an admitted addict, to undergo a chemical test to determine whether he was under the influence of narcotics at the time of trial. In that case, the court ruled, 413 P.2d at 741, that 'being under the influence of narcotics does not necessarily disqualify a witness from testifying.' The court upheld the conviction because the chemical test requested would have indicated only the presence of narcotics. A positive indication of the presence of narcotics would still leave for determination the question of admissibility. As the court said, 413 P.2d at 741--742:

'* * * If the trial judge had ordered the witness to submit to a Nalline test the question of competency would still have remained to be determined. Here, the trial judge was satisfied from personal observation that the witness was capable of comprehending the significance of questions addressed to him and of responding in a lucid manner. * * *'

United States ex rel. Lemon v. Pate, 427 F.2d 1010 (7th Cir. 1970), stemmed from a bench trial conviction of the sale of a narcotic drug in violation of state law. The case came before the United States Court of Appeals from the denial of a writ of habeas corpus filed in the United States District Court. One of the witnesses at the state trial was an informer, an addict who had been convicted of possession of narcotics. He had taken narcotics on the day of the controlled purchase and had used narcotics on the day of the trial some time prior to testifying (facts similar to the instant case). The petitioner was seeking relief from the federal court under the Sixth and Fourteenth Amendments because no hearing took place at the state trial with regard to the competency of the witness. (The district judge in this case did conduct such a hearing.) The circuit court noted that no objection to competency was made at the state le...