State v. Islas
| Decision Date | 25 May 1978 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 119 Ariz. 559,582 P.2d 649 |
| Parties | The STATE of Arizona, Appellee, v. Samuel Surez ISLAS, Appellant. 1287. |
| Court | Arizona Court of Appeals |
After a trial to a jury, appellant was convicted of conspiracy, first degree; the imposition of sentence was suspended and he was placed on probation for five years.
He raises two issues on appeal:
1. Whether the deportation of one of the co-defendants constituted a due process violation requiring the court to grant appellant's motion for dismissal.
2. Whether the prosecutor's statements in opening and final argument were improper and justify a reversal.
Neither issue merits a reversal.
Appellant and six co-defendants were arrested on January 11, 1977, during the sale of approximately 300 pounds of marijuana to two undercover sheriff's deputies assigned to the Metropolitan Area Narcotics Squad. The arrangements to purchase the marijuana had evolved from the agents' first contact with one of the middlemen on January 3, 1977, through a series of meetings and phone calls involving different groupings of the co-defendants.
At the preliminary hearing, agent Petropoulos at first mistakenly identified one of appellant's co-defendants, Fernando Ortiz Ramirez, as appellant. At trial there was a conflict in the evidence as to whether it was appellant or another co-defendant who was at a meeting with the agents on January 7, 1977. On the day of the arrest, appellant was present at the scheduled exchange but there was conflicting evidence as to whether or not he was a co-conspirator. Appellant's co-defendants, Carrillo, Morgan, Pallanes and Bracamonte, were witnesses for him at trial.
Appellant claims that Ramirez also was a material witness and that the state intentionally or negligently caused him to be unavailable. He relies on what is called the Mendez-Rodriguez rule in the Ninth Circuit. United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971).
In Mendez-Rodriguez the defendant was arrested while transporting six illegal aliens in his car. Three of the six were deported by the government to Mexico before the defendant or his counsel could interview them and the other three were retained as material witnesses for the trial. The defendant's motion to dismiss was denied and he was convicted, but on appeal his conviction was reversed and the court held that his Fifth and Sixth amendment rights had been violated by the government's act of deporting the three witnesses. See also United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974); United States v. Alonzo-Miranda, 427 F.Supp. 924 (E.D.Cal.1977).
Mendez-Rodriguez is inapplicable to the facts before us. At the preliminary hearing, the charges against Ramirez were dismissed. Defense counsel commented that if Ramirez were released he would be remanded to the custody of the United States Immigration Service, which had a "hold" on him. Neither defense counsel nor the prosecutor expressed concern about keeping him in Tucson as a witness. He had been available for interview from the time of his arrest, and no effort was made to serve him with a subpoena or forestall his deportation.
Appellant's second contention concerns remarks made by the prosecutor in her opening statement and final argument. In the opening statement, she said:
The extent to which counsel can go in opening statement is within the discretion of the court. State v. Prewitt, 104 Ariz. 326, 452 P.2d 500 (1969). We find no abuse of discretion.
In final argument, while contrasting the credibility of agent Petropoulos with that of appellant's co-defendants who testified...
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State v. Dunlap
...564 P.2d 888, 892-93 (1977) (improper comment on credibility of state's witness did not require reversal); State v. Islas, 119 Ariz. 559, 561, 582 P.2d 649, 651 (App.1978) (prosecutor's statement that state would not waste time bringing a case if the investigating officer were not believed ......
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State v. Waller
...scope and extent of an opening statement. See State v. Burruell, 98 Ariz. 37, 40–41, 401 P.2d 733, 736 (1965); State v. Islas, 119 Ariz. 559, 561, 582 P.2d 649, 651 (App.1978) (“The extent to which counsel can go in opening statement is within the discretion of the court.”). The purpose of ......
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State v. Pedroza-Perez, 2 CA-CR 2014-0168
...6, 66 P.3d 59, 64 (App. 2003), quoting State v. Just, 138 Ariz. 534, 550, 675 P.2d 1353, 1369 (App. 1983); see State v. Islas, 119 Ariz. 559, 561, 582 P.2d 649, 651 (App. 1978). To the extent Pedroza-Perez's argument raises constitutional issues, however, our review is de novo. See State v.......
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State v. Moreno, CA-CR
... ... His suggestion that the state had nothing to gain by calling certain witnesses "(i)f Mr. Moreno was not the person" was subject to correction by admonition on proper objection. See State v. Islas, 119 Ariz. 559, 561, 582 P.2d 649, 651 (App.1978). No objection was made. The remark was not so prejudicial as to deny appellant a fair trial ... The certified copy of the "scar sheet" from the records of the Arizona Department of Corrections, used for identification in proving ... ...