State v. Gortarez
| Decision Date | 27 June 1984 |
| Docket Number | No. 5601,5601 |
| Citation | 686 P.2d 1224,141 Ariz. 254 |
| Parties | STATE of Arizona, Appellee/Cross-Appellant, v. Alex L. GORTAREZ, Appellant/Cross-Appellee. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Michael D. Jones, Diane M. Ramsey, Gary A. Fadell, Asst. Attys. Gen., Phoenix, for appellee.
Alex L. Gortarez, in pro. per.
On March 25, 1982, a jury found appellant, Alex Gortarez, guilty of first degree conspiracy in violation of former A.R.S. § 13-331(A) [repealed by 1977 Session Laws, ch. 142, § 10]. He was sentenced to a term of not less than ten nor more than fifteen years. Timely appeal was filed from the conviction. The state timely filed a cross-appeal on an evidentiary matter. The appeal and cross-appeal were transferred to this Court from the Court of Appeals. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.S.Ct. 47(e)(1). We affirm the conviction. However, pursuant to A.R.S. § 13-4037, we modify appellant's sentence so that he is sentenced to imprisonment rather than to the Arizona Department of Corrections for the above-mentioned term. See State v. Gutierrez, 130 Ariz. 148, 634 P.2d 960 (1981).
In the summer of 1978, the Phoenix Police Department was involved in an attempt to expose and arrest members of a large-scale heroin distribution scheme. Because of difficulties in infiltrating the distribution organization and in direct surveillance, several wiretap authorizations were sought and were granted. Over a period of several months, the taped conversations involving the purchase and sale of heroin were analyzed. After many of the voices were identified, the case was presented to the grand jury. On April 21, 1980, the grand jury returned a thirty-four count indictment naming twenty-one defendants. Appellant was named in two counts and charged with conspiracy to distribute heroin for sale and possession of heroin. The possession charge was dismissed on the state's motion prior to trial.
In appealing his conviction on the conspiracy count, appellant raised six issues:
(1) whether the trial court erred in denying his motion to dismiss or for a new probable cause determination;
(2) whether evidence obtained pursuant to wiretaps should have been suppressed;
(3) whether the admission into evidence of certain of the taped conversations obtained from the wiretap was reversible error;
(4) whether there was sufficient evidence to support the verdict;
(5) whether the jury was improperly coerced into reaching a verdict; and
(6) whether he received ineffective assistance of counsel.
The state's cross-appeal raised the additional issue of whether the trial court properly admitted spectrographic voice identification evidence.
Subsequent to filing his notice of appeal, appellant filed a petition under Ariz.R.Crim.P. 32 in the superior court. The petition, the essence of which was ineffective assistance of counsel, was denied. He petitioned this Court to review that denial. Pursuant to Ariz.R.Crim.P. 31.4(b)(2), the petition to review the denial of the rule 32 petition was consolidated with the direct appeal and will be addressed herein.
Prior to trial, appellant moved to dismiss the conspiracy count or, in the alternative, to remand to the grand jury for a redetermination of probable cause. The basis of his motion was that the grand jury had heard perjured testimony regarding appellant's participation in the conspiracy. The state, in opposing this motion, acknowledged that the grand jury had received some misinformation but argued that the misrepresentation was not intentional. The trial court, after an evidentiary hearing, found that the misstatement was neither intentional nor motivated by malice, that appellant had suffered no prejudice from the misstatement, and that the motion was actually a challenge to the sufficiency of the evidence. Appellant's motion was denied.
To obtain review of the denial of a motion for a redetermination of probable cause, a defendant must seek relief via special action prior to trial. State v. Verive, 128 Ariz. 570, 627 P.2d 721 (1981). With one exception, review of matters relevant only to the grand jury proceedings cannot be sought by appeal from a conviction. Id. The one exception to this rule is when a defendant has had to stand trial on an indictment which the government knew was based partially on perjured, material testimony. United States v. Basurto, 497 F.2d 781 (9th Cir.1974). Appellant seeks to bring the instant case within this exception.
The misrepresentation at issue involved one of the overt acts with which appellant was charged. In relating to the grand jury the substance of the many taped conversations, Det. Richard Hogue inadvertently misidentified one speaker as appellant. At the evidentiary hearing, Det. Hogue explained how the mistake occurred. One of the other people indicted with appellant was his brother, Johnny Gortarez. Early in their investigation, the police officers believed that Johnny Gortarez and Alex Gortarez were the same person. This misunderstanding was apparently due to the fact that the brothers sometimes used each other's name and sometimes used the same nickname. Det. Hogue explained the mistake as follows:
We agree with the trial court that the misstatement was not intentional or motivated by malice and hold that the Basurto exception is inapplicable to this matter. Because appellant has been found guilty of conspiracy beyond a reasonable doubt, we will not now review the finding of probable cause made by the grand jury.
Prior to trial, appellant moved to suppress all evidence obtained by wiretaps authorized under former A.R.S. § 13-1057 [now A.R.S. § 13-3010]. His motion was denied. He now asserts that the denial was error and advances several bases for that assertion.
Appellant's first argument is that our state wiretap statute is unconstitutional because it has a "less limited scope" than the federal wiretap statute, 18 U.S.C. § 2510 et seq. However, appellant cites no example of any specific disparity between the state and the federal statutes. Both divisions of our Court of Appeals have examined various alleged disparities between the statutes and, while acknowledging minor differences between them, have found the state statute to be sufficiently compatible with the federal one to ensure compliance with the federal standards. See State v. Olea, 139 Ariz. 280, 678 P.2d 465 (App.1983); State v. Politte, 136 Ariz. 117, 664 P.2d 661 (App.1982). We agree with the analysis contained in those two opinions and uphold the constitutionality of the state statute.
Appellant's second argument is that the wiretap evidence was illegally obtained because there was no attempt to minimize the interception of communications not subject to interception under the court order. Initially, we note that appellant has no standing to challenge the validity of tapes of telephone calls to which he was not a party. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Jabara, 618 F.2d 1319 (9th Cir.), cert. denied sub. nom. Hood v. United States, 446 U.S. 987, 100 S.Ct. 2973, 64 L.Ed.2d 845 (1980). Regarding those tapes to which he was a party, we find that there was considerable evidence of minimization and that former A.R.S. § 13-1057(D)(6) [now A.R.S. § 13-3010(D)(6) ] was satisfied. Appellant's primary contentions are that English-speaking police officers monitored the telephone calls and that, because the calls were primarily in Spanish and not contemporaneously translated, there was a greater intrusion than necessary or than allowed by the court-ordered authorization. The trial court held a lengthy hearing on appellant's motion to suppress. At that hearing, the police officers involved in the monitoring testified that there was always a Spanish-speaking officer present to monitor the calls. The evidence also showed that, while sixty-two calls were intercepted on this wiretap, the recording of thirty-five of them was terminated because the calls were either personal or otherwise insignificant to the investigation. Given such evidence, we find no abuse of discretion in the trial court's denial of appellant's motion to suppress.
Appellant's final argument is that the affidavit in support of the wiretap which intercepted his calls did not mention his name and that it therefore violated his fourth amendment rights. Appellant was not a suspect at the time the authorization for the wiretap was sought or when it was issued. Only after the interception of the calls and the identification of the speakers did appellant become a suspect. The fact that his name was not included in the affidavit in support of the wiretap in no way infringes on his constitutional rights. See United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977); United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1975).
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