State v. Apodaca

• Decision Date: 15 February 1990
• Docket Number: CA-CR,No. 2,2
• Citation: 801 P.2d 1177,166 Ariz. 274
• Parties: The STATE of Arizona, Appellee, v. Edward Palacio APODACA, Jr., Appellant. 89-0331.
• Court: Arizona Court of Appeals

Page 1177

801 P.2d 1177

166 Ariz. 274

The STATE of Arizona, Appellee, v. Edward Palacio APODACA, Jr., Appellant.

No. 2 CA-CR 89-0331.

Court of Appeals of Arizona Division 2, Department B.

Feb. 15, 1990.

Redesignated as Opinion March 20, 1990.

Review Denied Dec. 18, 1990.

[166 Ariz. 275] Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser and Mark E. Dwyer, Phoenix, for appellee.

Roer & Hamilton by Lynn T. Hamilton, Chandler, for appellant.

OPINION

FERNANDEZ, Chief Judge.

After a six-day jury trial, appellant was convicted and sentenced to prison terms ranging from seven to 17.75 years for the following crimes: one count of possession of a narcotic drug for sale, one count of conspiracy to sell a narcotic drug, two counts of sale of dangerous drugs, and five counts of sale of a narcotic drug. Seven issues are raised on appeal and, finding no reversible error, we affirm.

First, appellant claims the court erred in permitting the state to impeach him with an incriminating statement obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). While they were searching appellant's residence pursuant to a search warrant, the police permitted appellant's mother to telephone appellant who was in the Pinal County Jail. After his mother spoke to him, she handed the phone to a police officer who then spoke to appellant. Appellant told the officer his mother was upset and asked when the police would be leaving. The officer told appellant they would leave when they found what they were looking for and he could help them leave sooner if he told them where it was. Appellant then told the officer to look in a certain kitchen cabinet where he found cocaine. After a voluntariness hearing, the court ruled that appellant's statement was obtained in violation of Miranda. It precluded the state from using the statement in its case-in-chief but ruled that it could be used for impeachment purposes if appellant testified. The court refused to suppress the cocaine, determining that it would have been inevitably discovered. Appellant does not appeal from that ruling.

During its case-in-chief, the state examined the police officer but did not question him about the telephone conversation or appellant's statement. It was only after appellant testified on direct examination, claiming innocence and entrapment, that the state asked appellant during cross-examination about the phone call and his statement. Our supreme court follows Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), which permits a defendant to be impeached by statements that violate Miranda. State v. Carrillo, 156 Ariz. 125, 750 P.2d 883 (1988). In that case, our supreme court stated, "The state is forbidden to make direct use of a voluntary confession taken in violation of Miranda. However, the state may use such a confession to impeach a defendant who takes the stand." 156 Ariz. at 131, 750 P.2d at 889. We find no error.

Secondly, appellant contends the court erred in refusing to sever his cases. He was indicted under two different cause numbers, the first for drug transactions involving cocaine that occurred between March 23 and July 6, 1988, and the second for two transactions involving PCP and a conspiracy count involving cocaine that occurred in August 1988. Appellant's counsel moved to consolidate the cases in October 1988 on the ground that the two cases:

are of the same or similar character, are based on the same conduct or are otherwise connected together in their commission; and are alleged to have been a part of a common scheme or plan. Defense submits that the ends of justice will not be defeated thereby.

At the start of trial, the same counsel orally moved to sever the cases, claiming that appellant's defenses were inconsistent because his defense to the first indictment was entrapment and his defense to the second was that the sales never took place. The court denied the motion. On appeal, appellant contends that the court improperly denied his motion. We disagree. Appellant waived his right to sever by having first moved to consolidate. Even if he did not waive the right, however, he has failed to show that the court abused its discretion in denying the motion.

Next, appellant contends the court erred in failing to order drug tests to be conducted on one of the prosecution's witnesses in order to establish his competency to testify. The witness admitted he had used drugs in the past. At trial, his speech was difficult to understand. The witness explained that he was tired from lack of sleep because of a death in his family and that his speech was always difficult to understand. The witness specifically denied that he was under the influence of drugs at the time of trial. The trial court found there was no indication that the witness was under the influence of drugs and denied the request for drug testing.

Witness competency is a question within the trial court's discretion. State v. Arriola, 99 Ariz. 332, 409 P.2d 37 (1965). In general, that discretion should be exercised in favor of allowing testimony. State v. Piatt, 132 Ariz. 145, 644 P.2d 881 (1981). Arizona appellate courts have previously refused to overturn trial court rulings allowing a witness to testify despite evidence that the witness was known to be a user of narcotics. State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739 (1966); State v. Arriola, supra. Competency determinations are fact-intensive, and an appellate court should not overrule the trial court unless the record absolutely demands it. Davis v. Weber, 93 Ariz. 312, 380 P.2d 608 (1963). The trial court here observed the appearance and demeanor of the witness and determined that drug tests were not called for. We find no abuse of discretion in the court's ruling.

Appellant's fourth claimed error is the court's denial of his motion to dismiss the conspiracy count. He argues there was insufficient evidence of an overt act in furtherance of the conspiracy to support the charge. The state contended that appellant's act of driving the police informant several places in an attempt to obtain cocaine was a sufficient overt act to support the count. Appellant admitted he drove around town but claims that he was merely attempting to get the informant to stop asking appellant to sell him drugs. Thus, there was a fact question on the existence of an overt act in furtherance of the conspiracy that the trial court properly submitted to the jury. See State v. Verive, 128 Ariz. 570, 627 P.2d 721 (App.1981). We find no error.

Appellant's fifth claim deals with juror misconduct. After the jury retired to deliberate, the undercover police officer who had purchased drugs from appellant reported that two of the jurors had briefly spoken to him. The first juror told him, "Be careful. I will pray for you." The officer stated that he told her, "Thank you," and nothing further was said. The second juror told him that one of the other jurors wanted to talk to him after the trial. The court denied appellant's counsel's request for...