State v. Chavez, 1510
| Decision Date | 24 June 1965 |
| Docket Number | No. 1510,1510 |
| Citation | 98 Ariz. 236,403 P.2d 545 |
| Parties | The STATE of Arizona, Appellee, v. Arthur Brito CHAVEZ, Appellant. |
| Court | Arizona Supreme Court |
Robert W. Pickrell, former Atty. Gen., Norman E. Green, Pima County Atty., Carl Waag, William T. Healy, Deputy Pima County Attys., for appellee.
Jack I. Podret, Tucson, for appellant.
Arthur Brito Chavez, hereinafter referred to as defendant, was tried, convicted and sentenced to serve not less than six years and not more than eight years for unlawful sale of narcotics. From the conviction and sentence he appeals.
On October 7, 1963, at about 8:00 p. m., state narcotics agent Edmund Cleveland, of the Department of Liquor Licenses and Control, Leonard B. Hymer, also an agent of the department, and William Dunn, of the Tucson Police Department, were present and assisted in a search of an informer for the department, Henry Lugo. Lugo was stripped of his clothing, and both clothing and body searched for evidence of narcotics. There was also present in the room at the time of the search Cleveland's son, Ben. Then Cleveland gave Lugo a five-dollar bill for the purchase of narcotics. Cleveland, Hymer, and Dunn then went out to the parking lot, where the agents searched Lugo's car for evidence of narcotics after which Lugo proceeded in his car to the establishment known as the Globe Pool Hall. He was followed by Cleveland, Hymer and Dunn. Stopping at the pool hall, Lugo got out of his car, and waited in front thereof for several minutes until defendant came on the scene. Defendant and Lugo went into the pool hall. There were numerous persons congregated therein. From across the street Dunn saw Lugo and defendant leave the hall be the back door, and lost sight of them, but two or three minutes later saw them emerge from the hall. Hymer, who was in a different location, testified that he could see Lugo and defendant in the back of the pool hall through his binoculars, and described motions of their hands as though they were shaking hands and talking. Lugo, followed by the agents, drove to the state office building where he handed Cleveland the piece of paper introduced in evidence containing heroin.
The evidence showed that Lugo had been convicted of a felony, was placed on probation, and was a user of narcotics. Lugo testified that he was paid a bonus for every case he made, and Cleveland admitted that he would not have kept him on so long 'if he hadn't made cases--probably not over a month or five weeks,' but that he would have paid him just the same during that period.
During the trial Lugo got sick, and admitted that his type of illness often happened to 'hypes.' He also admitted taking narcotics a few days before the trial. Several witnesses testified in behalf of defendant to the effect that Lugo had a bad reputation for truth and veracity; that he was a heavy user of narcotics, and to other matters affecting his credibility.
Defendant first claims that prejudicial error was committed during the cross-examination of Cleveland, as follows:
'A Well, there are not--there is lots of money made from pushing, yes.
'Q If a man was a pusher, do you expect he would be able to afford an attorney?
'A Well, there is all different kinds of pushers.
'Q Generally a man that is selling narcotics and making a lot of money, do you think that he would be able to afford an attorney?
'A Most of them have, yes.
'Q Would you think that if he did happen to get picked up and incarcerated, that he would be able to make bond and pay a bondsman?
'Q I was going to go into it generally and then refer to this defendant.
'Would you expect that if Mr. Chavez here was a seller of narcotics, that he would be able to afford to hire himself an attorney, the defendant?
'A Well, he was a petty pusher.
'Q A petty pusher?
'A Yes.
'Q He didn't make very much money, is that it?
'A I don't know how much money he made but he was not a big dealer.
'Q You do know that he has court appointed counsel, do you not?
'A That is what you have told me.
'Q And would you expect that a man that was pushing and selling narcotics would have enough money to get out of jail on bond?
'A Well, they use a lot of it themselves, they have to sell to support their habit, a lot of them.
'Q In this case, Mr. Chavez has not been able to make bond?
'A I know he has not made bond.'
It will be noted that counsel for defendant asked the question 'Would you expect that if Mr. Chavez here was a seller of narcotics that he would be able to afford to hire himself an attorney, the defendant?' The witness answered '* * * he was a petty pusher.' It was this answer to the question which defendant contends was prejudicial, and the court should have granted a mistrial on this ground.
In the case of State v. Saenz, Jr., 98 Ariz. 181, 403 P.2d 280 (June 16, 1965), and in State v. Kellington, 93 Ariz. 396, 381 P.2d 215, we held it was prejudicial error for a prosecuting witness to volunteer answers showing prior convictions or information in regard to defendant's being implicated in other crimes. The basis of our holding was that the officers testifying should have known and been admonished by the prosecuting attorney against volunteering such prejudicial evidence. It will be noted, however, that the facts in the instant case are altogether different. Counsel for defendant persisted in questions which would infer the innocence of defendant by showing that defendant did not have money with which to employ counsel or make bond, and that if he had been selling narcotics he would have been able to do so. The question called for an opinion, and the witness gave the opinion that 'he was a petty pusher.' The opinion was undoubtedly based upon the amount of the sale which he had already testified to in the instant case; therefore, it was not prejudicial. A defendant cannot complain of such an answer when his own question relates to whether he was a seller of narcotics, and he deliberately brought about the answer by his question.
Defendant next contends that he was entrapped. In State v. Gortarez, 98 Ariz. 160, 402 P.2d 992 (June 10, 1965), which was a narcotics case where the facts were similar to those of the instant case, and it was the contention of defendant that he had been entrapped, we held:
'In State v. Hernandez, 96 Ariz. 28, 391 P.2d 586, we stated:
'* * * the defense of entrapment does not arise where one is ready to commit the offense given but the opportunity, Bloch v. United States, 9 Cir., 226 F.2d 185; Cline v. United States, 9 Cir., 9 F.2d 621.' 96 Ariz. at 31, 391 P.2d at 587.
Lugo testified in the instant case:
'A He asked me if I was looking for some 'stuff' and something like that, and I said, 'That night not yet."
And then Lugo told him that he might want to get some later; that he did not have any money right then. Defendant stated that he would be in the pool hall about 8:30 p. m. or 9:00 o'clock if he wanted some, and then stated that he was referring to heroin. Then, in regard to...
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State ex rel. McMannis v. Mohn
...States v. Esquer, 459 F.2d 431 (7th Cir. 1972), Cert. denied, 414 U.S. 1006, 94 S.Ct. 366, 38 L.Ed.2d 243 (1973); State v. Chavez, 98 Ariz. 236, 403 P.2d 545 (1965); State v. Crawford, 99 Idaho 87, 577 P.2d 1135, 1146 (1978); Jessup v. State, 256 Ind. 409, 269 N.E.2d 374 (1971); Commonwealt......
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