State v. Moraga

• Decision Date: 17 June 1965
• Docket Number: No. 1495,1495
• Citation: 403 P.2d 289,98 Ariz. 195
• Parties: STATE of Arizona, Appellee, v. Manuel Cota MORAGA, Appellant.
• Court: Arizona Supreme Court

Page 289

403 P.2d 289

98 Ariz. 195

STATE of Arizona, Appellee, v. Manuel Cota MORAGA, Appellant.

No. 1495.

Supreme Court of Arizona, In Division.

June 17, 1965.

Darrell F. Smith, Atty. Gen., Robert W. Pickrell, Former Atty. Gen., Norman E. Green, Pima County Atty., Carl Waag, Deputy Pima County Atty., William T. Healy, Deputy Pima County Atty., for appellee.

Jack I. Podret, Ted Pederson, Tucson, for appellant.

McFARLAND, Justice.

Appellant, hereinafter referred to as defendant, was convicted and sentenced to a term of not less than thirteen nor more than fifteen years on each of two counts (to run concurrently) for the unlawful sale of narcotic drug (heroin) in violation of A.R.S. § 36-1002.02, as amended. From the conviction, sentence, and the denial of his motion for a new trial, he appeals.

On October 8, 1963, about seven o'clock in the evening, Henry Lugo, who had been hired as an informer by Edmund C. Cleveland, an agent for the Department of Liquor Licenses and Control, went to Room 124 in the State Office Building in Tucson, where his clothing and his person were searched by Cleveland, and, then, in the parking lot his automobile was searched. Leonard B. Hymer, another agent of the Department, and William Dunn of the Tucson Police Department who worked in the vice and narcotics division, assisted in the search. Cleveland then gave Lugo five dollars to make a purchase of narcotics.

Lugo then drove off in his car, followed by Cleveland, Hymer, and Dunn. They followed him to where Lugo met defendant at the intersection of 17th Street and Convent. Lugo parked his car some twenty feet north of 17th Street on Convent. Defendant came into view, and Lugo followed him. They walked up and met, the time being about 7:30 p. m. Cleveland, Hymer, and Dunn testified that they watched them through night glasses--that it looked like they were shaking hands. Lugo testified that he gave defendant five dollars and that he was handed a packet which he kept in his hand until he returned to the state office building, where he gave it to Cleveland. The packet was later examined by Clifton V. Ark, a chemist for the Tucson Police Department, and was found to contain heroin.

On the 19th of October the same procedure was followed, except that Dunn did not observe the transaction, but was in the office when the others returned. Cleveland testified that the money was given to Lugo for the purchase of the evidence. The paper was likewise examined and found to contain heroin.

Defendant took the stand at the trial, denied the transaction, and claimed an alibi--that on the evening of October 8th he was at home at the time of the alleged sale. His testimony was corroborated by his wife, Mary Moraga. He also denied the sale on the evening of the 19th, and claimed he was at a Bingo game. This testimony was corroborated by Armida Maldonado and Rose Moraga, defendant's mother.

Defendant contends that the background and character of Lugo was such that the testimony should have been rejected by the trial court, or, in the alternative, Lugo should have been treated as an accomplice and the court should have required corroboration of his testimony. He bases this contention on the evidence that Lugo was an informer and a user of narcotics. At the trial, on cross-examination, counsel for defendant had Lugo point out a series of 'track marks.' Lugo also admitted to defense counsel that he received a bonus of fifty dollars for each person he informed against; and that he had been convicted of a felony--grand theft--in 1962.

We have held that in reviewing the sufficiency of evidence this court will view it in the light most favorable to the state and will resolve all reasonable inferences against defendant. State of Ariz. v. Pearson, 98 Ariz. 133, 402 P.2d 557 (June 3, 1965); State v. Corrales, 95 Ariz. 401, 391 P.2d 563; State v. George, 95 Ariz. 366, 390 P.2d 899. In the Pearson case, supra, where the facts were similar to those of the instant case, and Lugo was likewise the principal witness, we held:

'The evidence directed toward the impeachment of Lugo's character affects only his credibility as a witness and not the admissibility of his testimony. If the evidence was sufficient to warrant submission to the jury, it is not for judges to weigh the evidence or to determine the credibility of witnesses, United States v. Kahaner, 2 Cir., 317 F.2d 459.' 98 Ariz. at 135, 402 P.2d at 559.

The contention of defendant in the instant case that Lugo should be treated as an accomplice and that the court should have required corroboration of his testimony is not well founded. The general rule in regard to informers being treated as accomplices is stated in 23 C.J.S. Criminal Law § 788, p. 11:

'A detective or police officer engaged in attempts to discover violations of law does not thereby become an accomplice of persons charged with specific violations; nor are informers, 'spotters,' and the like, regarded as accomplices of persons against whom information is given.'

In Johnson v. State, 36 Ala.App. 634, 61 So.2d 867 (1952), the defendant had previously offered to sell marijuana to the witness, and he thereafter, acting with the knowledge and the planning of the police officers, had gone to the home of the defendant and made purchase of marijuana cigarettes. The court, in passing upon the question of his being an accomplice, held:

'However, this witness, under the undisputed proof, was not an accomplice within the contemplation of the law. His acts were not motivated by any criminal intent to violate the law. His participation was not criminally corrupt.

'The following authorities sustain our view: 22 C.J.S., Criminal Law, § 788, p. 1340; Lett v. U. S., 8 Cir., 15 F.2d 690; Gonzales v. State, 108 Tex.Cr.R. 253, 299 S.W. 901; People v. Kinsley, 118 Cal.App. 593, 5 P.2d 938; People v. Abair, 102 Cal.App.2d 765, 228 P.2d 336; People v. Mimms, 110 Cal.App.2d 310, 242 P.2d 331; People v. Grijalva, supra [48 Cal.App.2d 690, 121 P.2d 32]; Finley v. State, 84 Okl.Cr. 309, 181 P.2d 849.' 61 So.2d at 869.

In Finley v. State, 84 Okl.Cr. 309, 181 P.2d 849 (1947), the court said:

'* * * Fugatt's intent, after being requested to pay a bribe, was that of an informer, acting under the direction of the county attorney, in order to catch him who had requested the bribe of her.

'There is a wide distinction between the part played by Ruth Fugatt and the part played by the defendant. Jones says, 'Persons who, when a crime has been suggested, and who make an early disclosure of the offense to the authorities, and, under their direction continue to act with the guilty party, but for the purpose of bringing them to justice, are not accomplices in the sense that their testimony requires corroboration.' Jones, Commentaries on Evidence, Vol. 5, § 2218, p. 4235, 4236, note 7.' 181 P.2d at 859.

The law is clear that testimony of an informer does not have to be corroborated. However, Lugo's testimony was corroborated in the instant case. The evidence is sufficient, where corroboration is required, if it tends to connect defendant with the crime. State v. Turner, 94 Ariz. 309, 383 P.2d 866. Certainly the evidence of the officers in this case was sufficient to connect defendant with the crime. They had previously searched Lugo--his clothes, his person, and his automobile. They watched him through night glasses on both occasions, and, although unable to see the actual transfer, they saw him meet defend...