State v. Moreno
| Decision Date | 26 September 1962 |
| Docket Number | No. 1212,1212 |
| Citation | 374 P.2d 872,92 Ariz. 116 |
| Parties | The STATE of Arizona, Appellee, v. Dian Lee MORENO, Appellant. |
| Court | Arizona Supreme Court |
Martin S. Rogers, Tucson, for appellant.
Robert Pickrell, Atty. Gen., of Arizona and Harry Ackerman, Pima County Attorney by Manuel H. Garcia, Deputy County Attorney, for appellee.
Appellant, Dian Lee Moreno, wife of Rudolph Moreno, appeals from a conviction and sentence on a charge of possession of a narcotic drug, heroin, a violation of A.R.S. § 36-1002.
On February 17, 1961, appellant and her husband admitted to their apartment a Tucson police officer and a liquor control agent who had a warrant for the arrest of appellant's husband. After appellant's husband was placed under arrest he was questioned as to the whereabouts of a narcotic kit. Appellant was present during the greater part of this questioning and she was also questioned particularly concerning her personal use of narcotics. She admitted to be personal use, but claimed she was not an addict. After sometime appellant's husband was permitted by the arresting officers to engage in a private conversation with his wife and immediately thereafter nodded to a paper towel rack saying, 'It is in there'. A cardboard tube was removed from the rack and in it was found a plastic bag containing two eye-droppers, one eye-dropper bulb, a plastic needle case with needles in it, and four cotton wads described in the evidence as pledgets.
Charges were filed thereafter against appellant and her husband for joint possession of a narcotic drug. Testimony was developed that a user of narcotics wiped the tip of the hypodermic needle with a cotton wad saving it so that its residue along with others could later be dissolved in water. The resulting solution was used for a 'booster' shot and it was not unusual for addicts to do this when they are unable to otherwise get a supply. At the trial after the state rested, defendants moved for a directed verdict of acquittal on the grounds that the evidence was not sufficient to sustain a conviction. This motion was renewed at the conclusion of all the evidence. The state after some argument requested that it be permitted to reopen its case, which request was granted.
One witness, a police chemist was recalled. He testified that he had analyzed the four cotton wads and determined that they contained approximately .2 milligrams of heroin in the form of heroin hydrochloride. He also testified that this amount of heroin would be sufficient to be effectively used as a narcotic.
Certain technical errors are raised which will first be considered briefly. First, it is urged that it was error for the trial court to allow the state to reopen its case after the defendants had rested. As to this we have previously held in State v. Cassady, 67 Ariz. 48, 190 P.2d 501, that a motion to reopen is addressed to the sound discretion of the trial court. The denial or granting of such motion will not be disturbed unless it appears that there is an abuse of the court's discretion. From our examination of the record we do not find that appellant was prejudiced by the granting of the state's motion. To constitute prejudice it must appear that the defendant was deprived of a substantial right. James v. State, 53 Ariz. 42, 84 P.2d 1081.
At the time that the court granted the state's motion to reopen it advised the jury of the purpose in this language:
'Ladies and gentlemen, the court has permitted the state to reopen their case to offer evidence on the limited question of how much of the quantity of heroin, if there was any, was in the defendants' possession.'
We do not believe that from the judge's remark to the jury any inference could have been drawn as to how he felt concerning the status of the evidence in the case or in the light of his subsequent instruction that he had any personal feelings as to the guilt or innocence of the accused.
Defendant complains that the court below did not specifically rule on her motion for judgment of acquittal notwithstanding the verdict made subsequent to conviction. The court's failure therein is of no significance and does not constitute error. Such a motion is not authorized by the Rules of Criminal Procedure, 17 A.R.S. the only procedures being Rule 307 for a new trial and Rule 315 for a motion in arrest of judgment. Both of these latter motions were made and denied. See Rules 313 and 319 respectively.
The principal assignment of error of importance to a determination of this appeal raises a question as to the sufficiency of the evidence to sustain the conviction. Decisions dealing with the particular aspect of unlawful possession of narcotic drugs here presented are few in number. While they ostensibly seem to be in conflict, nevertheless a close examination reveals a thread of uniformity contained in the holdings. There are decisions under statutes similar and even identical to ours that the specific amount of narcotic drug unlawfully possessed is immaterial. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234; Peachie v. State, 203 Md. 239, 100 A.2d 1. It is to be observed that their authority is questionable since in each a readily identifiable quantity was involved. Other jurisdictions seem to indicate that an amount sufficient to be useable is necessary to warrant a conviction. See Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122 and Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171.
The most recent decision reaching this precise question is that of People v. Marich, 201 A.C.A. 523, 19 Cal.Rptr. 909. The facts there are in part similar to the facts here. There the chemist found powdery fragments present in the folds of the paper and a residue on pieces of cotton. He testified that in his opinion the residue was heroin and that it would be possible for it to be utilized by a person wishing to inject the remains that were present. The California Court stated:
'It is unlawful under § 11500 to possess 'any narcotic other than marijuana except upon the written prescription of a physician * * *.' (See, People v. Salas, 17 Cal.App.2d 75, 78, 61 P.2d 771.) We recently...
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Thomas v. US
...not exempt from the law's coverage.16 We rejected the government's contention, and, adopting the rationale of State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (Ariz.1962) (en banc), held that there can be no conviction "where there is only a trace of a substance ..., and there is no additional p......
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Thomas v. US
...3 The other jurisdictions are Arkansas (Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990) and Arizona (State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962) (en banc)). ...
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Cooper v. State
...favorable to drug addicts and those illegally dealing in narcotics cannot reasonably be given. Dodd relies on State v. Moreno (1962), 92 Ariz. 116, 374 P.2d 872, and People v. Pippin (1962), 16 A.D.2d 635, 227 N.Y.S.2d 164, but to the extent those cases stand for a rule that a usable amount......
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State v. Vance
...v. Johnson, 5 Cal.App.3d 844, 85 Cal.Rptr. 238 (1970); Beutler v. State, 88 Nev. 707, 504 P.2d 699 (1972); See also State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962); Edelin v. United States, 227 A.2d 395 (D.C.App.1967); Watson v. State, 88 Nev. 196, 495 P.2d 365 (1972); Pelham v. State, 1......