State v. Gortarez

• Court: Arizona Supreme Court
• Writing for the Court: McFARLAND; LOCKWOOD
• Citation: State v. Gortarez, 402 P.2d 992, 98 Ariz. 160 (Ariz. 1965)
• Decision Date: 10 June 1965
• Docket Number: No. 1440,1440
• Parties: STATE of Arizona, Appellee, v. Johnny GORTAREZ, Appellant.

Page 992

402 P.2d 992

98 Ariz. 160

STATE of Arizona, Appellee, v. Johnny GORTAREZ, Appellant.

No. 1440.

Supreme Court of Arizona, In Banc.

June 10, 1965.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, Former Atty. Gen., Stirley Newell, former Asst. Atty. Gen., for appellee.

Ross Anderson, Phoenix, for appellant.

McFARLAND, Justice.

Johnny Gortarez, appellant hereinafter referred to as defendant, was convicted and sentenced for a term of not less than eight nor more than ten years in the Arizona State Prison for illegal sale of narcotics, in violation of A.R.S. § 36-1002.02, as amended. From this conviction and sentence defendant appeals.

On April 16, 1963, defendant, while standing on the step of the home of one Gloria Mediana, was approached by Jesse Saenz, Jr., an informer for the Arizona state liquor department. Saenz asked defendant if he had any 'carga' (slang for heroin) for sale. Defendant replied affirmatively if Saenz had $10.00. Saenz stated he did not have any money, but that his friend 'Mike' who was waiting in a parked car, did have ten dollars. Thereupon Saenz proceeded to the car, and received $10.00 from 'Mike,' who was in reality Roy Madrid, an agent of the Department of Liquor Licenses and Control. Saenz returned, handed defendant the money, and received a small white paper which contained heroin. Saenz turned the paper over to Madrid, who departed immediately. Later, defendant was arrested. He was tried before a jury and convicted on September 30, 1963.

Defendant cites ten propositions as error. He first contends that the trial court erred in denying his motion to remand the case for preliminary hearing. He claims that his waiver of the preliminary hearing, when he was indigent and without the aid of counsel, occurred at a 'critical stage of the proceedings,' and therefore he was denied his legal rights under the United States Constitution. In State v. Schumacher, April 1, 1965, 97 Ariz. 354, 400 P.2d 584, where defendant raised the same objection as in the instant case, contending that the preliminary hearing was a critical stage of the proceedings, we held:

'Generally, the failure to assign counsel prior to preliminary examination, unless a defendant's position has been prejudiced thereby, is not considered a denial of the Sixth Amendment rights. French v. Cox, 74 N.M. 593, 396 P.2d 423; State v. Cox, 193 Kan. 571, 396 P.2d 326; Application of Hoff, Nev., 393 P.2d 619. Cf. Wells v. State of California, D.C., 234 F.Supp. 467.

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'The waiver of the preliminary examination by a defendant is in effect a concession that there is evidence sufficient to find probable cause to hold him to answer for the offense charged. See also State v. Peats, 97 Ariz. 133, 397 P.2d 631, where we passed on the question here presented without comment in concluding there was no denial of constitutional rights; and see State v. Grainger, 96 Ariz. 172, 393 P.2d 266.' 97 Ariz. at 356 and 357, 400 P.2d at 585 and 586.

The record in the instant case does not reveal that defendant's rights were prejudiced by not having counsel at the preliminary hearing; hence, this assignment of error is not well founded.

Defendant claims the court erred by twice denying his motion for a bill of particulars. In his brief he does not set forth how he was prejudiced but relies solely on his contention that the granting of a bill of particulars was mandatory and not discretionary. Rule of Criminal Procedure No. 116, 17 A.R.S. provides:

'A. When an indictment or information charges an offense in accordance with the provisions of Rule 115, but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the county attorney to furnish a bill of particulars containing such information as may be necessary for these purposes, or the county attorney may of his own motion furnish such bill of particulars.'

This rule makes a bill of particulars mandatory only when it is necessary under the conditions as set forth therein. The necessity thereof rests in the sound discretion of the court. State v. Benham, 58 Ariz. 129, 134, 118 P.2d 91, 93 (1941). The court, in denying the motion, found a bill of particulars was not necessary in the instant case, and did not abuse its discretion. State v. Colvin, 81 Ariz. 388, 307 P.2d 98 (1957)

Defendant asserts as error the following testimony of the witness Saenz:

'Q What did you do then?

'A We started as an undercover agent, about going, seeing this fellow that was trafficking narcotics in the same vicinity of 9th Street.'

Defendant claims that this testimony, coupled with the later testimony of Saenz and agent Madrid to the effect that they proceeded to 9th Street, observed defendant, and negotiated a sale of narcotics with him, constituted reversible error, viz., the representation to the jury of an innuendo of prior criminal activity on his part. Defendant claims under the rule set forth in State v. Kellington, 93 Ariz. 396, 381 P.2d 215 (1963), his rights were prejudiced, and that his motion for mistrial on this ground should have been granted. We do not agree with this contention. The portion of the transcript following the statements objected to by defendant reveals the following response by Saenz in answering the question as to whom he saw when he went to 9th Street.

'Q Who did you see there?

'A We were after to see this fellow that lives on 9th Street, and he wasn't there, so we continued on 9th Street, and it was a deadend, that is when we saw the defendant standing right by the door.' [Emphasis supplied.]

The record clearly shows that the person 'trafficking narcotics' was some one other than defendant, and therefore any implication of prior criminal misconduct was directed to that other person.

Under assignments No. 4 and No. 5 defendant contends that the court erred in its ruling in regard to the showing that the state's witness was addicted to heroin and therefore showing mental or physical defects; also in refusing to allow testimony as to how a drug addict became employed by the state on an issue of promised immunity from prosecution. To support his contention he referred specifically to the following cross-examination of the witness Saenz by defense counsel:

'Q Now, you say you have been employed by the Arizona State Liquor Agency, is that not correct?

'A Correct.

'Q And you are in the narcotics division?

'A That is true.

'Q Could you tell us the circumstances how you came about being employed by the narcotics agency?

'A MR. BUTTERFLY: I will----

'THE COURT: Sustained.

'MR. ANDERSON: If the Court please, he has testified he is an employee of the State Narcotics Agency. I would like to test this and see if he is.

'THE COURT: You may go into that as to the dates that were discussed here.'

During a conference out of the hearing of the jury, the following colloquy occurred:

'MR. ANDERSON: May I be allowed to show he is a drug addict, and the jury can infer that his ability to memorize and hear and listen----

'THE COURT: No, I think I have stated the Court's position. You can show any of the circumstances around or surrounding the date in question or close enough to it that might affect these items to impeachment. The Court previously said that it will not allow any insinuations of other crimes unless you are prepared to show a conviction, that he has been convicted of a crime concerning narcotics. You may do so.

'MR. ANDERSON: I may not show the Court by evidence that he has taken narcotics the day this incident happened?

'THE COURT: The day prior to it?

'MR. ANDERSON: The day this happened.

'THE COURT: Prior to the time he testified? I would say yes.

'MR. ANDERSON: He hasn't been convicted on it?

'THE COURT: No.

'MR BUTTERFLY: Our position as what he testified to on September has nothing to do with his power of observations on April 16. His power of observations may also be tested, but it is on the time, he can't go back to September.

'THE COURT: You may show the surrounding circumstances on the 16th day. He testified whatever they may have been to effect of physical and mental attributes.'

Defendant claims the court should have permitted the witness to answer the following question:

'Could you tell us the circumstances surrounding how you came about being employed by the Narcotics Agency?'

This was undoubtedly a preliminary question, and the court should have permitted it to be answered. However, counsel for defendant, out of the hearing of the jury, stated that if allowed he would show that Saenz was an informer, and that he received $25 for every person informed on, and that he had been threatened by the police and was offered immunity if he would cooperate with them. The defendant was then permitted to examine Saenz as to his method of pay. Saenz testified that he was an informer for the Department of Liquor Licenses and Control, Narcotics Division, and that he had been paid '$35.00 per head'--that this arrangement of employment continued for about three months. After that he was paid a salary of $400 a month. He also testified that he had not been offered immunity in regard to any prosecution for testifying in this case, and that no police officer had threatened him if he did not testify; that he had told the police he had sold heroin in the past, but that there were no charges against him at the time of the trial. Also in the course of his testimony he admitted that he had used narcotics in the past. Counsel for defendant was permitted to ask Saenz if he had taken a 'shot' of heroin on the morning of the trial. He answered that he had not, and stated that he quit taking heroin about the middle of December 1962, and he had not take any since that time.

Large latitude is permitted in cross-examination of a prosecuting witness...