State v. Moreno
| Decision Date | 23 March 1976 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 547 P.2d 30,26 Ariz.App. 178 |
| Parties | STATE of Arizona, Appellee, v. Ricardo G. MORENO, Appellant. 1082. |
| Court | Arizona Court of Appeals |
After a trial by jury, appellant was convicted of possession of heroin for sale and placed on probation for five years. Pursuant to a warrant, obtained through information supplied by a confidential informant, the police searched appellant's apartment and found 10.5 grams of heroin. Appellant's defense to the charge was that this amount of heroin did not create a presumption of possession for sale and that the heroin did not belong to him, but rather to his roommate. On appeal appellant raises 10 issues:
1. whether the trial court erred in denying appellant's motion to remand for a new preliminary hearing;
2. whether the trial court erred in denying appellant's motion to compel discovery of the identity of the confidential informant;
3. whether the trial court erred in denying appellant's motion to suppress evidence because the affidavit did not sufficiently establish the informant's reliability;
4. whether the trial court erred in denying appellant's motion for production and inspection of fingerprints and fingerprint cards used by the State's expert for comparison in determining whether the informant handled the heroin;
5. whether the trial court erred in denying appellant's motion to dismiss for violation of the speedy trial rules;
6. whether the trial court erred in refusing to ask all of appellant's questions on voir dire;
7. whether opinion testimony by a police officer that a minimum quantity of heroin indicated that the holder was more interested in selling it than in having it for his own use was error;
8. whether the trial court erred in admitting the heroin without the prosecution establishing a proper chain of custody;
9. whether the prosecutor improperly commented on appellant's exercise of his privilege against self-incrimination and his failure to testify;
10. whether the prosecutor made improper remarks to the jury.
At the preliminary hearing the State presented the arresting police officer as its only witness. The officer testified that a chemist had told him that she had examined one of the packages which had been seized in the search and that it contained heroin.
Appellant now claims that Rule 5.4(c), Arizona Rules of Criminal Procedure, requires that hearsay evidence from experts can only be admitted through the use of a written report. The State claims that expert testimony may be presented by written report, but, pursuant to Rule 5.4(c)(3), it may also be presented by way of verbal hearsay if the declarant is expected to testify at trial. However, we need not decide this question, because proper objection to this evidence was not made at the time of the preliminary hearing.
It is well established that without proper objection at the trial or hearing level, an error in the admission of evidence is not subject to review unless it constitutes fundamental error. State v. Tostado, 111 Ariz. 98, 523 P.2d 795 (1974); State v. Endreson, 109 Ariz. 117, 506 P.2d 248 (1973). Here, appellant was eventually provided a copy of the chemist's report and the chemist testified at the trial. Accordingly, the admission of this hearsay testimony at the preliminary hearing does not constitute fundamental error.
Information received from an unidentified informant formed the basis for the issuance of the search warrant in this case. In an attempt to discover the identity of the informant, appellant called three witnesses, one of whom he suspected to be the informant, to testify at a hearing on his motion to suppress. Each of the witnesses denied being the informant. Appellant then asked Detective Robinson, the arresting law enforcement officer, if any of these witnesses had committed perjury. Robinson refused to answer this question on the grounds that it would reveal the identity of his informant. In his brief, the sole reason given by appellant for desiring this information was to impeach Robinson's affidavit which formed the basis for the issuance of the search warrant.
The Arizona Supreme Court has held that:
. . . When the issue before the trial court is not the guilt or innocence of a defendant but probable cause for an arrest or search, the State need not be required to disclose an informant's identity if the trial court is convinced by the evidence submitted in court and subject to cross-examination that the officers did rely in good faith upon credible information supplied by a reliable informant. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). The real issue involved in the determination of an issue such as probable cause is not whether the informant lied to the officers but whether the affiant is truthful in his recitation of what he was told and whether that information is credible and reliable. (State v. Keener, 110 Ariz. 462, 520 P.2d 510 (1974))
In the current case Robinson was subjected to cross-examination and the evidence is sufficient to support the trial court's finding that he relied in good faith on credible information supplied by a reliable informant.
Appellant contends that the affidavit for the search warrant is insufficient because it failed to establish that the informant was reliable as required by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The affidavit stated:
The affiant believes the informant to be reliable because: The confidential reliable informant has supplied your affiant with at least 50 items of information pertaining to narcotics trafficers (sic) and users which your affiant has personally verified by independent means.
The affiant believes the information given him is reliable because: The confidential reliable informant has on at least 1 (one) occasion (sic) supplied your affiant with a sample of narcotic drug (heroin) and identified the drug properly. The confidential reliable informant is famaliar (sic) with the narcotic drug, heroin, through personal use and experience.
The fact that an informant has proven reliable in the past is sufficient to establish the required reliability under Spinelli. State v. Watling, 104 Ariz. 354, 453 P.2d 500 (1969); State v. White, 13 Ariz.App. 265, 475 P.2d 750 (1970). The affidavit indicates that the informant had provided Robinson with 50 items of information which had proved to be reliable in the past. However, appellant argues that the bare allegation that the informant had provided reliable information in the past is not sufficient to establish reliability in the absence of any arrests or convictions resulting from that information. Appellant cites no cases or authority for this proposition. In fact, Watling, supra, and White, supra, indicate that this is not an absolute requirement, but that other reliable information is sufficient.
Appellant also argues that the informant did not supply Robinson with heroin, but rather that Robinson purchased the heroin from the informant. The purpose of the statement that the informant had supplied heroin in the past was to establish that the informant had experience with and could identify heroin. For this purpose, it does not matter whether the informant 'supplied' or 'sold' the heroin to Robinson. Accordingly, appellant's third ground on appeal is without merit.
Appellant next contends that the prosecution should have been required to produce all of the fingerprint cards submitted to the State's fingerprint expert for comparison with the latent prints taken from the packets of heroin. However, pursuant to appellant's request, one of the fingerprint cards used in the comparison was that of the informant. This comparison was made to establish whether the disclosure of the informant was required under Rule 15.4(b).
The State offered to produce all of the fingerprint cards except that of the informant. It refused to produce the informant's fingerprint card because such production would reveal the informant's identity. Appellant's only authority for his argument that the fingerprint card of the informant should have been produced is Rule 15.1(c), which provides that the prosecutor shall 'make available to the defendant for examination, testing and reproduction any specified items contained in the list submitted under Rule 15.1(a)(4).' Rule 15.1(a)(4) includes 'all papers, documents, photographs or tangible objects which the prosecutor will use at trial or which were obtained from or purportedly belong to the defendant.' Since the fingerprint card did not fall within these requirements, it appears that the prosecution was not expressly obligated to produce the card under the scope of the rule. Of course, if this material tended to mitigate or negate appellant's guilt, it would have been discoverable under Rule 15.1(a)(7). However, appellant does not argue this point on appeal and there is no evidence in the record to show how this information would have negated or mitigated appellant's guilt.
Appellant's trial was originally scheduled for November 14, 1974. This date was the 90th day from the date of appellant's arraignment and the last day in which the appellant could be tried without violating the rules relating to speedy trial. See Rule 8.2. On November 13, appellant's attorney delivered a motion to continue to the prosecution a the trial judge on ground had complied with the courts discovery order. Apparently, on the morning of November 14, the prosecution complied with that...
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State v. Secord, 2 CA-CR 2002-0093.
...In the absence of any evidence to the contrary, this was sufficient to show the chain of custody. See Jackson; State v. Moreno, 26 Ariz.App. 178, 547 P.2d 30 (1976). f. Cumulative error ¶ 19 Lastly, Secord maintains that all the asserted errors combined "led the jury to the inevitable concl......
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State v. Perez
...to be determined by the trier of fact. Id. at 514. See also State v. Arce, 107 Ariz. 156, 483 P.2d 1395 (1971); State v. Moreno, 26 Ariz.App. 178, 547 P.2d 30, 36 (1976). Likewise, in Avila, supra, 353 A.2d at 776, minutes before being apprehended at a railroad station, police saw defendant......
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State v. Secord, 2 CA-CR 2002-0093 (Ariz. App. 5/4/2004)
...In the absence of any evidence to the contrary, this was sufficient to show the chain of custody. See Jackson; State v. Moreno, 26 Ariz. App. 178, 547 P.2d 30 (1976). f. Cumulative error ¶19 Lastly, Secord maintains that all the asserted errors combined "led the jury to the inevitable concl......
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State v. Albert
...See State v. Verrue, 106 Ariz. 325, 475 P.2d 939 (1970); State v. Watling, 104 Ariz. 354, 453 P.2d 500 (1969); State v. Moreno, 26 Ariz.App. 178, 547 P.2d 30 (1976); State v. Payne, 25 Ariz.App. 454, 544 P.2d 671 (1976); State v. Archer, 23 Ariz.App. 584, 534 P.2d 1083 (1975); State v. Whit......