State v. Canelo, 21883
| Decision Date | 17 October 1996 |
| Docket Number | No. 21883,21883 |
| Citation | 924 P.2d 1230,129 Idaho 386 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Jose CANELO, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Jensen & Burr-Jones, Burley, for appellant. Kent D. Jensen argued.
Alan G. Lance, Attorney General; Michael A. Henderson, Deputy Attorney General, Boise, for respondent. Michael A. Henderson argued.
Jose R. Canelo was found guilty by a jury of delivery of a controlled substance, I.C. § 37-2732(a)(1)(A). On appeal, he claims that the trial court erred by: (1) denying his motion for a mistrial after the state failed to provide timely discovery of material evidence; (2) refusing to instruct the jury on the affirmative defenses of entrapment and duress; and (3) admitting evidence of other bad acts. For the reasons explained below, we affirm.
Jose Canelo was indicted on one count of delivery of a controlled substance. I.C. § 37-2732(a)(1)(A). During the trial, Officer Scott S. Ward, of the Bureau of Narcotics of the Idaho Department of Law Enforcement, testified as follows. On April 19, 1994, he and Victor Payan, a paid confidential informant, drove in a truck to a house in Rupert, Idaho, where a drug transaction was to take place. Upon arriving at their destination, they parked at the front of the house and saw three men standing on the front porch. One of the men, later identified as Ramon Alfaro, approached the truck to speak to Payan, and Canelo and the third man entered the house. Shortly thereafter, Canelo came out of the house. As Canelo approached the truck, Payan got out and Canelo seated himself in the passenger seat. Payan remained next to the door on the passenger side of the truck in order to translate for Ward and Canelo because Ward did not speak Spanish. Canelo removed a bag of cocaine from his pocket and placed it on the seat, and Ward picked it up. They negotiated a price of $200, which Ward paid to Canelo. They then discussed the possibility of more transactions at $1000 per ounce for cocaine.
On cross-examination Ward explained that prior to this transaction, Payan entered into an oral agreement with the department whereby Payan was to be paid a fee for drug transactions completed by the department as a result of information or assistance provided by Payan. Ward further testified that Payan signed a document with the department which Ward referred to as a "CI Agreement." Ward explained that this document contained guidelines that informants were to follow when setting up drug buys for the state. When defense counsel inquired concerning the whereabouts of the CI Agreement, Ward stated that it was in a file at his office. Following a discussion off the record, the district court requested Ward to have a copy of the CI Agreement faxed to the court, and then recessed the jury in the meantime. After the copy was obtained, it was marked as an exhibit for the state. 1 Canelo then moved for a mistrial claiming that he had been prejudiced by the belated disclosure of the CI Agreement. The court ruled that although a copy of the document should have been provided to the defense through the normal course of discovery, insufficient prejudice existed to warrant a mistrial. The court then adjourned, giving Canelo the remainder of the afternoon as a continuance to review the document.
The jury later returned a verdict of guilty on the charge of delivery of a controlled substance. The court imposed a unified sentence of six years, with a two-year minimum period of confinement. Canelo has appealed from the judgment of conviction.
Canelo asserts that on November 29, 1994, he made a supplemental discovery request to the state, asking that the prosecutor's office supply him with a copy of the contract under which Payan worked for the Idaho Bureau of Narcotics. The state responded that no written contract existed. After learning of the CI Agreement during trial, the court directed the state to produce a copy of it for the defense. Canelo now argues that this information was vital to his efforts in attacking Payan's credibility in order to prove affirmative defenses of duress and entrapment. He contends that as a result of the state's failure to timely produce the CI Agreement, his right to due process was violated and the district court erred when it did not grant his motion for a mistrial.
In a criminal case a motion for a mistrial is governed by I.C.R. 29.1, which provides, in part, that "[a] mistrial may be declared upon motion of the defendant, when there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, which is prejudicial to the defendant and deprives the defendant of a fair trial." I.C.R. 29.1(a); State v. Araiza, 124 Idaho 82, 94, 856 P.2d 872, 884 (1993). The decision whether to grant a mistrial rests within the sound discretion of the district court and will not be disturbed on appeal absent an abuse of discretion. State v. Tolman, 121 Idaho 899, 902, 828 P.2d 1304, 1307 (1992); State v. Atkinson, 124 Idaho 816, 818, 864 P.2d 654, 656 (Ct.App.1993). This Court has held that the question on review is not whether the trial court reasonably exercised its discretion under the circumstances existing when the motion was made. Rather, the question is whether the event or events which brought about the motion for mistrial constitute reversible error when viewed in the context of the entire record. Atkinson, supra; State v. Urquhart, 105 Idaho 92, 95, 665 P.2d 1102, 1105 (Ct.App.1983).
Here, because Canelo failed to show any prejudice from the belated disclosure of the CI Agreement at the time he moved for a mistrial, the district court chose to provide Canelo with a continuance rather than grant the mistrial motion. In this respect, the decision to grant or to deny a continuance also rests within the sound discretion of the trial court. State v. Cagle, 126 Idaho 794, 797, 891 P.2d 1054, 1057 (Ct.App.1995). Where the late disclosure or discovery of evidence forms the basis for a request for relief, the alleged tardiness of the disclosure must be shown to have been so prejudicial to the defendant's preparation of his or her case that a fair trial was denied. I.C.R. 16; State v. Tapia, 127 Idaho 249, 255, 899 P.2d 959, 965 (1995); State v. Hansen, 108 Idaho 902, 904, 702 P.2d 1362, 1364 (Ct.App.1985). To prove prejudice, a defendant must show there is a reasonable probability that, but for the late disclosure of evidence, the result of the proceeding would have been different. Tapia, supra.
After the district court received the CI Agreement by fax, a copy was provided to Canelo. The court then granted a continuance so Canelo could review the document. Once the trial was reconvened, Canelo had the opportunity to cross-examine Ward and Payan regarding the CI Agreement. The record shows that Canelo never made a request for additional time to review the document, moved again for a mistrial or asserted further that he had suffered prejudice. Canelo has failed to demonstrate any prejudice from the late disclosure of this document. Furthermore, the option chosen by the district court--affording Canelo a continuance as an alternative to a mistrial in the absence of a showing of prejudice--was the less radical solution and was a reasonable choice under the circumstances.
We therefore conclude that the district court did not abuse its discretion in denying Canelo's motion for a mistrial based on the belated delivery of the CI Agreement.
Next, Canelo claims that the district court erred in refusing to instruct the jury on the affirmative defenses of duress and entrapment.
Canelo testified to a much different scenario than did Ward. According to Canelo, he and Payan had a major disagreement in November of 1994, over a woman. Canelo claimed that Payan threatened him with bodily harm and he thereafter avoided Payan out of fear. Canelo also explained that during the winter months of 1994, he accepted Angel Abdon's invitation to move into the house in Rupert where the drug transaction at issue in this case later occurred. In addition to Abdon, Guillermo Vellez and Ramon Alfaro lived at this residence. Canelo stated that after two months, he learned that Abdon, Vellez and Alfaro were involved in drug trafficking. He explained that he ceased receiving unemployment benefits during this time, and could not pay his rent. As a consequence, Vellez and Alfaro started pressuring him to sell drugs. Canelo testified that Payan came to their house frequently to purchase drugs, and that it was during these visits that he learned Payan still wanted to harm him.
Canelo related that on April 19, 1994, he was inside of the house watching television when Ward and Payan arrived. He became aware of Payan's presence only after Vellez and Alfaro had told him to deliver the cocaine to Ward. Canelo testified that to avoid problems with Alfaro and Payan, he conducted the transaction as ordered. He claimed that he did not make any money from the transaction and that he did not converse with either Payan or Ward about future drug sales. Canelo denied involvement in any drug deals prior to this event.
Canelo claims that his testimony supplied the jury with facts which were sufficient to establish that he was coerced and under duress when he delivered the cocaine to Ward. Referring to his inability to pay rent because his unemployment benefits ceased, Canelo testified:
He also described his involvement in the sale to Ward, commencing with Ward and Payan's arrival at Canelo's residence:
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