State v. Arriola
Decision Date | 16 December 1965 |
Docket Number | No. 1554,1554 |
Citation | 99 Ariz. 332,409 P.2d 37 |
Parties | The STATE of Arizona, Appellee, v. Edward Campos ARRIOLA, Appellant. |
Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Norman E. Green, Pima County Atty., Carl Waag, Deputy County Atty., for appellee.
Jack I. Podret, Tucson, for appellant.
Edward Campos Arriola, hereinafter referred to as defendant, was convicted and sentenced to serve not less than six nor more than seven years in the Arizona state prison for the unlawful sale of narcotics, in violation of A.R.S. § 36-1002.02, as amended. From the conviction, sentence, and denial of motion for new trial he appeals.
On October 18, 1963, at about 9:00 a. m., state narcotics agents, Edmund Cleveland and Leonard Hymer, of the Arizona Department of Liquor Licenses and Control, were present in the State Office Building in Tucson, Arizona, and searched Henry Lugo, a department informer. They stripped him of clothing, and both clothing and his body were searched for evidence of narcotics. Cleveland's son, Ben, was also present at the time of the search. Agent Cleveland gave Lugo an unmarked five-dollar bill to be used for the purchase of narcotics, and the men then proceeded to the parking lot where Lugo's state car was searched for evidence of narcotics. The agents then followed Lugo in a separate car to the vicinity of Speedway and Main where defendant's home was located. The agents, remained some distance away and watched with the aid of binoculars. Lugo sounded his automobile horn, defendant came out of his house, and then both men entered and came out shortly thereafter. The agents, approximately 175 yards from defendant's house, did not observe the exchange of money for heroin. Lugo entered his car, and followed by the state agents proceeded back to the state office building parking lot where he handed agent Cleveland a 'paper' of heroin, later introduced in evidence at the trial.
Defendant first assigns as reversible error the failure of the trial court to grant his motion for mistrial made after the following testimony was given on redirect examination of informer Lugo by counsel for the state:
'A Well, he took some heroin in front of me when I did at the same time.
The above questions and answers followed the cross-examination of the witness by defense counsel in regard to these same matters.
'Q Actually, the first time you met him defendant you went to Mickey's house, didnt you?
'A That is probably where I first met him.
'Q On that particular day you and Mickey and some other people shot up, didnt they?
'Q In Mr. Arriola's presence, he was there?
'A He was there and fixed with us.
'Q Might not have too?
'Q You fixed in front of him?
'A With him.'
As will be noted, counsel for defendant asked the witness if he had not gone to Mickey's house and if he had not on that particular day 'shot up' with Mickey and some other people. After the witness answered that he might have, but wasn't sure, counsel then asked if it were in defendant's presence and if he were there, to which he received the answer, 'He was there and fixed with us.' Then, after other questions, he asked the witness specifically 'You fixed in front of him?', and received the answer, 'With him.' It was redirect after this type of examination that the question was asked as to whether he had 'fixed' with Edward Arriola, the defendant. Defense counsel contends that he is entitled to a mistrial because of the answer, 'Well, he took some heroin in front of me when I did at the same time.' Counsel asked that the answer be stricken, the court sustained the objection, and instructed the jury to disregard it.
This whole field of examination was opened by defense counsel. It was in response to defense counsel's questions that the witness had first said that '[h]e was there and fixed with us.' The law is well settled that where defendant opens the door and invites error in the case at the trial, as was done in the instant case, he may not assign it as error on appeal. State v. Gallegos, 99 Ariz. ----, 407 P.2d 752 (November 12, 1965); State v. Rascon, 97 Ariz. 336, 400 P.2d 330; State v. Paramo, 92 Ariz. 290, 376 P.2d 554; State v. Vidalez, 89 Ariz. 215, 360 P.2d 224; State v. Eisenstein, 72 Ariz. 320, 235 P.2d 1011; Riley v. State, 50 Ariz. 442, 73 P.2d 96.
The next two assignments of error involve the same questions presented under almost the same state of facts in other narcotics cases before this court, in which Lugo was the informer and the principal witness. The first contention was that the trial court erred in failing to direct a verdict in defendant's favor on the ground that Lugo was an accomplice whose testimony was wholly uncorroborated. We cannot agree with this contention. We have recently held that the testimony of an informer need not be corroborated for the reason that he is not an accomplice. State v. Chavez, 98 Ariz. 236, 403 P.2d 545; State v. Moraga, 98 Ariz. 195, 403 P.2d 289. In State v. Moraga, supra, where Lugo was also the informer, we stated:
98 Ariz. at 198, 403 P.2d at 292.
This assignment of error is unfounded.
The next contention of defendant is the refusal of the trial court to find the informer Lugo incompetent to testify. Similar questions were also presented in State v. Moraga, supra, and State v. Chavez, supra, in which Lugo was a witness. In both Moraga and Chavez, supra, it was contended that the testimony of Lugo should have been rejected. In both cases it was urged that he was a user of narcotics, and, in Chavez, defense...
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Pratt, In re, Cr. 37534
...not a true accomplice; the testimony of an undercover agent or paid informer, and consequently a feigned accomplice (State v. Arriola, 99 Ariz. 332 (409 P.2d 37, 39) ), falls outside the ambit of section 1111, Penal Code, making it unnecessary to show that it was sufficiently corroborated. ......
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State v. Hausner
...and thereby waived any objection to its admission by testifying on direct that he was not a violent person. See State v. Arriola, 99 Ariz. 332, 334–35, 409 P.2d 37, 39–40 (1965). Evidence Rule 404(a)(1) allows the admission of “[e]vidence of a pertinent trait of character offered by an accu......
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State v. Jeffers, 4253
...(witness on morphine at time testified). See, State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965) (by implication); State v. Arriola, 99 Ariz. 332, 409 P.2d 37 (1965) (by implication). The question of reliability here, just like the question of competency, is within the sound discretion of th......
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State v. Shing
...repeatedly held that a defendant may not create error in the trial court and then rely on that created error on appeal. State v. Arriola, 99 Ariz. 332, 409 P.2d 37 (1965); State v. Farmer, 97 Ariz. 348, 400 P.2d 580 (1965); State v. Rascon, 97 Ariz. 336, 400 P.2d 330 (1965); State v. Paramo......