State v. Archer, 1
| Decision Date | 13 May 1975 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 534 P.2d 1083,23 Ariz.App. 584 |
| Parties | STATE of Arizona, Appellee, v. Allen Ray ARCHER, Appellant. 724. |
| Court | Arizona Court of Appeals |
On March 15, 1974, defendant, Allen Ray Archer, was convicted by a jury on two counts of possessing a stolen motor vehicle in violation of A.R.S. § 28--1423. The facts necessary for the disposition of his appeal are as follows:
Following a preliminary hearing on December 12, 1973, the defendant was ordered to stand trial on these charges in Superior Court. During the preliminary hearing, hearsay statements, implicating the appellant as an accomplice in a motorcycle stealing operation, were admitted into evidence over objection of defense counsel. These statements were made by Thomas H a juvenile, who had been stopped on December 5, 1973, by police officials for riding a stolen motorcycle. At that time the juvenile implicated defendant Archer by name and indicated that two stolen vehicles could be found at 5311 East Taylor in Phoenix, Arizona. These statements led to the arrest of Archer during the early morning hours of December 5, 1973, at his residence in Goodyear, Arizona. Later in the day, on the basis of the juvenile's statements, the police obtained a search warrant for the East Taylor premises and recovered two stolen motorcycles that were in various stages of being 'stripped down.' The record shows that when these statements were offered at the preliminary hearing, the prosecution indicated to the court that there were reasonable grounds to believe the juvenile would be available to testify at the trial.
Other evidence before the court revealed that, in addition to the Goodyear residence, Archer had rented the East Taylor cabin only three days before the issuance of the search warrant.
When the case came to trial in the Superior Court on March 14, 1974, the State indicated that the juvenile was not available to testify, although it had made a good faith attempt to secure his appearance. The defense moved to dismiss the information because of prejudice arising from the unavailability of the witness whose hearsay statements were allowed into evidence during the preliminary hearing. The motion was denied and thus constitutes the defendant's first assignment of error.
Rule 5.4(c) of the Rules of Criminal Procedure, 17 A.R.S., permits a determination of probable cause based in whole or in part on hearsay statements where there are reasonable grounds to believe that the declarant will be personally available for trial.
Evidence presented at the preliminary hearing indicated that the juvenile was a first offender who lived at home; that the would remain in the custody of his parents, one of whom was an invalid; that the parents informed police authorities of their intent to remain in Phoenix so as to allow the disabled parent to continue receiving a support check, and that the arresting officers were told that the juvenile would be available. On this record, we conclude that there were reasonable grounds to believe that the juvenile would be available. The subsequent unavailability of the witness does not vitiate that conclusion or require a dismissal of the charges. Defendant contends that he relied upon the calling of this witness by the State as a reason for not assuring his presence through a subpoena. We find in this, however, no ground for a dismissal of the case. A party has no right to rely on the possibility that an opposing party will call a certain witness. The fact then that the State does not utilize the testimony of one originally intended as a witness does not constitute reversible error. See State v. Chatman, 109 Ariz. 275, 508 P.2d 739 (1973).
We now turn to the next assignments of error. Defendant contends that the trial court erred in denying his motion to suppress the evidence obtained pursuant to the search warrant. He also contends that, after consideration of all the evidence, including that seized pursuant to the warrant, the defendant's motion for a directed verdict of acquittal should have been granted. We disagree with both contentions.
The affidavit in support of the search warrant contained statements given by the juvenile to the officer which reveal a substantial quantum of facts regarding the actual procedures of the motorcycle theft operation. It states that the juvenile was an accomplice in the thefts and had personal information relating to them. We conclude that a neutral and detached magistrate could find from the affidavit that the informant was an eyewitness to the crimes charged and was therefore a reliable informant possessing reliable information. State v. White, 13 Ariz.App. 265, 475 P.2d 750 (1970); State v. Ramos, 11 Ariz.App. 196, 463 P.2d 91 (1969). It follows that the affidavit states probable cause for the issuance of the search warrant in accordance with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
Defendant next asserts that the evidence as a whole, including the property seized pursuant to the search warrant, was insufficient to prove (1) that the defendant was in actual or constructive possession of the motorcycles, and (2) that the defendant knew or had reason to believe that the vehicles were stolen. We disagree.
Facts in the record establish that two stolen motorcycles were found in a cabin rented by defendant. There is no dispute that the vehicles were stolen; that the defendant was the only tenant of the East Taylor premises, and that he was the only person in possession of a key to the cabin. In order to prove unlawful possession of a given item, the State must establish that the item was in his dominion and control. State v. Hunt, 91 Ariz. 149, 370 P.2d 642 (1962). We find the evidence in this case is sufficient to show possession of the stolen motorcycles within the meaning of ...
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State v. Rodgers, 1
...328, 620 P.2d 703, 707 (App.1980), cert. denied, 450 U.S. 1044, 101 S.Ct. 1765, 68 L.Ed.2d 242 (1981). Further, in State v. Archer, 23 Ariz.App. 584, 534 P.2d 1083 (1975), this court [T]he informant was an eyewitness to the crimes charged and was therefore a reliable informant possessing re......
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...State v. Moreno, 26 Ariz.App. 178, 547 P.2d 30 (1976); State v. Payne, 25 Ariz.App. 454, 544 P.2d 671 (1976); State v. Archer, 23 Ariz.App. 584, 534 P.2d 1083 (1975); State v. White, 13 Ariz.App. 265, 475 P.2d 750 (1970); State v. Ramos, 11 Ariz.App. 196, 463 P.2d 91 (1969). Compare United ......
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