State v. Mangrum, 1500

• Decision Date: 30 June 1965
• Docket Number: No. 1500,1500
• Citation: 403 P.2d 925,98 Ariz. 279
• Parties: The STATE of Arizona, Appellee, v. Edward MANGRUM, Appellant.
• Court: Arizona Supreme Court

Page 925

403 P.2d 925

98 Ariz. 279

The STATE of Arizona, Appellee, v. Edward MANGRUM, Appellant.

No. 1500.

Supreme Court of Arizona, In Division.

June 30, 1965.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, former Atty. Gen., Norman E. Green, Pima County Atty., John R. Neubauer, Deputy Pima County Atty., Carl Waag, Deputy Pima County Atty., for appellee.

Bernard I. Rabinovitz, Tucson, for appellant.

McFARLAND, Justice.

Appellant, hereinafter referred to as defendant, was convicted and sentenced to a term of not less than fifteen nor more than eighteen years in the Arizona State Prison for the unlawful sale of narcotic drug (heroin), in violation of A.R.S. § 36-1002.02, as amended. From the conviction and sentence he appeals. Defendant was previously tried on the 10th day of February 1964, and convicted, but a new trial was granted by the Honorable Raul H. Castro.

Testimony in the case showed that Henry Lugo, Jr., an informer in the employ of the Department of Liquor Licenses and Control, testified that on the 6th day of November 1963 he was standing on the sidewalk in Tucson in the 500 block of South Convent when he had a conversation with defendant who was a passenger in an automobile driven by one Duke Robinson Shaw. In the conversation Shaw and defendant indicated they had some heroin to sell. Lugo told them he did not have any money, but would try to get some and meet them later. The three were observed by Leonard Hymer, an agent for the Department of Liquor Licenses and Control.

Immediately after the conversation Lugo proceeded to the office of the Department in the State Office Building at Tucson, at which time his person and clothing were searched by Edmund C. Cleveland, another agent of the Department, Hymer, and Sergeant William Dunn of the Tucson Police Department.

After the search in the office, Lugo was given five dollars by Cleveland. They then went to the parking lot, and searched Lugo's car. Lugo got into his automobile, and was followed by Cleveland in his car accompanied by his son Ben who had also been present at the time of the search, and by Hymer and Dunn in Hymer's car. Lugo proceeded to the 500 block of South Convent Avenue. He was at all times under the observation of Cleveland. Hymer and Dunn followed, lost sight of him for a short time, but drove up at the time he stopped. A short time later, Shaw and defendant Mangrum, in a black automobile, came west on 17th Street, and went north on Convent, and stopped across the street from Lugo's car. Lugo went over to the passenger's side of the automobile, handed Mangrum the five dollars, and received a small paper from Mangrum. The agents watched what happened throught binoculars and observed Lugo lean over in the car, then go back to his own car. He was followed by Cleveland, Hymer and Dunn back to the state office building, where he gave Cleveland the paper which he had received from Mangrum. Its contents were tested and found to be heroin. Defendant denied being in the 500 block of South Convent the second time when Lugo testified he made the purchase. Defendant testified that the first conversation at 502 South Convent did not concern the purchase of narcotics, but rather was regarding Lugo's efforts to dispose of a stolen typewriter. This testimony was corroborated by Duke Shaw, whose deposition of an earlier trial of defendant was read, he being out of the jurisdiction of the court at the time of this trial.

Defendant first contends that the court erred in not permitting his counsel to interrogate the witness, Henry Lugo, Jr., concerning a conversation he had with a Phoenix attorney. Lugo had admitted that he had been convicted of a felony--grand theft--in 1962; that he had used narcotics from September 1963 to November 1963; and that he was on probation at the time of the trial. It also appeared that he had been an informer for the state in other cases. In answer to a question, Lugo stated that he knew Ted Matz, the attorney in Phoenix, very well--that in the latter part of 1962 he had a conversation with him. He then admitted the conversation was concerning a client of Matz against whom he had testified in a criminal case. Defense counsel then asked Lugo:

'Q Did you not, in fact, state in this conversation that----

'MR. NEUBAUER: Your Honor----

'Q--you had framed his client?

'MR. NEUBAUER: I object to his question where he is going into the contents of a conversation which is quite obviously hearsay.'

Then, in the absence of the jury, the court asked defense counsel what was involved, and counsel replied as follows:

'MR. RABINOVITZ: This is a foundation, Your Honor, that I am laying for a witness for the defendant to be used as impeachment testimony concerning a conversation that he had with this witness, and it is going to the credibility of this witness to testify in this proceeding.

'Now, the testimony of Mr. Matz, who is a Phoenix attorney, will indicate to the Court that this witness told him that he had framed Mr. Matz's client in an earlier case. This goes to the credibility of the witness, the bias and prejudice, and I will present Mr. Matz to testify. This is why I am asking this question of this witness now.

'THE COURT: What is your viewpoint on this, Mr. Neubauer?

'MR. NEUBAUER: What was the motive? You said the credibility?

'MR. RABINOVITZ: The credibility of the witness in this trial as to whether he can be believed by the jury.

'MR. NEUBAUER: That is what you propose by----

'MR. RABINOVITZ: Pardon?

'MR. NEUBAUER: The purpose of your question to Mr. Lugo is to impeach him, is that correct, to give him a warning question?

'MR. RABINOVITZ: That is the purpose of this question here.

'MR. NEUBAUER: And to show what further point?

'MR. RABINOVITZ: Well, becuase I intended to show by Mr. Matz's testimony that it will impeach this witness.

'THE COURT: To show that at some other time--under oath, is it?

'MR. RABINOVITZ: Yes.

'THE COURT: You are going to show a falsehood at some other time under oath?

'MR. RABINOVITZ: Yes.

'THE COURT: It will reflect on his credibility in this case?

'MR. RABINOVITZ: Yes.

'THE COURT: Using the occasion of a falsehood, he told a lie once before in a particular case, so, he may tell one in this case; that is the substance of it?

'MR. RABINOVITZ: Yes.'

Then, after the witness had stated that he had testified in the other case, the following colloquy:

'THE COURT: Let the record show in Chambers Counsel for the State and the Defendant present. As I understand you intend to show that there was some conversation in the attorney's office in Phoenix to the effect that the witness had given false testimony, is that it?

'MR. RABINOVITZ: Yes.

'THE COURT: Concerning the attorney's client in a narcotics case?

'MR. RABINOVITZ: Yes.

'THE COURT: That is the purpose of your question?

'MR. RABINOVITZ: Yes.

'THE COURT: And the facts have no connection with this case? It is merely to reflect upon this witness's credibility, is that correct?

'MR. RABINOVITZ: Yes.

'THE COURT: The record may show that the Court will sustain the objection. The feeling of the Court is that the testimony is not competent and that the only proper way to impeach the witness as to his credibility would be his general reputation for that trait of character or by agreement that it is impeachment as to the facts of this particular case. Any further offer of proof you want to make on it?

'MR. RABINOVITZ: Well, would you like me to give my argument?

'THE COURT: It will be fully in the record. You will have your position fully set forth.

'MR. RABINOVITZ: My position is that the evidence of a prior inconsistent statement by the witness is admissible, and that in order to introduce evidence of a prior inconsistent statement, it is necessary to lay a foundation by asking a warning question, which I in effect attempted to do by inquiring as to the conversation between Mr. Lugo and Mr. Matz in Phoenix.

'If Mr. Matz were allowed to testify he would state that Mr. Lugo, in his office in Phoenix, admitted to him that he had testified falsely at a prior criminal trial against Mr. Matz's client and was boastful of the fact that he had framed him. It is my position, based on the prior cases in which Mr. Lugo had testified, he will deny having made this statement, and that the evidence of Mr. Matz would be proper impeachment amounting to evidence of a prior inconsistent statement.'

Defendant contends that he should have been allowed to impeach Lugo by the testimony of Matz to the effect that he had committed perjury in another case, it being admitted that the other case had no connection with the instant case. In State v. Harris, 73 Ariz. 138, 238 P.2d 957, we said:

'In the majority of jurisdictions only veracity character is admissible to impeach a witness and evidence of bad general character not affecting veracity is inadmissible. 3 Wigmore Evidence 447, 450, §§ 922 and 923 (3d ed. 1940). The majority of courts will allow on the cross-examination of the witness, specific acts of misconduct not sustained by a conviction to be shown which affect veracity. 3 Wigmore Evidence 550, § 983 (3d ed. 1940). But this court has allied Arizona with the minority of states by holding that on cross-examination specific acts of misconduct cannot be shown unless the witness has been convicted of that crime. In other words a mere accusation of a felonious crime is not admissible unless there has been a conviction. (Cases cited.)

'This was an attempt on the part of the defendant to impeach Walter Ong on a mere accusation of crime. This is clearly inadmissible under the Arizona rule stated above. The reason given by the courts for this limitation is that this is a collateral matter and if allowed it would be time-consuming and a confusion of the issues. Another good reason is the protection of the witness. He should not be expected to come prepared to defend every incident of his past life but only to meet those felonious acts of which he has been...