State v. Padilla

• Decision Date: 09 May 1979
• Docket Number: No. 4537,4537
• Citation: 595 P.2d 170,122 Ariz. 378
• Parties: STATE of Arizona, Appellee, v. Alex Romero PADILLA, Appellant.
• Court: Arizona Supreme Court

Page 170

595 P.2d 170

122 Ariz. 378

STATE of Arizona, Appellee, v. Alex Romero PADILLA, Appellant.

No. 4537.

Supreme Court of Arizona, In Banc.

May 9, 1979.

John A. LaSota, Jr., former Atty. Gen., Robert K. Corbin, Atty. Gen., by William J. Schafer, III, and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by Terry J. Adams, Deputy Public Defender, Phoenix, for appellant.

HAYS, Justice.

Alex R. Padilla appeals from a judgment of conviction of two counts of sale of a narcotic drug and from another judgment of conviction of one count of sale of a narcotic drug. The two appeals were consolidated. He has two prior convictions for possession of a narcotic drug. He was sentenced to twenty to sixty years on each sales conviction, to run concurrently. We have jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e)(5). We affirm both judgments of conviction and both sentences.

Padilla raises three issues on appeal:

1. Whether the trial court's refusal to hold a Dessureault hearing before the first of Padilla's two trials was error;

2. Whether prior bad-act testimony at the first trial denied Padilla a fair trial; and

3. Whether prior bad-act testimony at the second trial denied Padilla a fair trial.

Both of the convictions before us arise from the following facts. In July, 1977, Officer Hernandez and Officer Morales, working undercover, contacted a man known to them as "Griffo" and asked to purchase heroin. They successfully obtained a package of powder from him which a criminalist later determined to be heroin. Subsequently, they were told by another officer that Griffo's real name was Alex Padilla. In order to confirm that information, the officers obtained a picture of Padilla, in a sealed envelope, from their identification department and delivered it to another officer who put together a photo lineup which included the photo of Padilla. The officers then picked out Padilla's photo.

In August, Officer Hernandez and another officer, Officer Madrid, contacted Padilla again and purchased a substance from him that was later found to be heroin. In October, the same two officers were again successful in purchasing a quantity of heroin from Padilla. He was subsequently arrested and charged by indictment with two counts of sale of a narcotic drug and by separate indictment with one count of sale of a narcotic drug. The first indictment (relating to the August and October sales) was tried and resulted in a conviction on both counts. The second indictment (relating to the July sale) was tried and also resulted in a conviction.

DESSUREAULT HEARING

Prior to the first trial (relating to the August and October sales), Padilla moved for a hearing pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), Cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970), to determine whether the expected in-court identifications of Padilla by the police officers were tainted by the photo lineup that occurred in July. The motion was denied and the officers were allowed to make the in-court identification. Padilla alleges error.

The purpose of a Dessureault hearing is to examine the circumstances of a post-crime/pretrial lineup identification by a person who witnessed the criminal activity that is before the court. Dessureault simply does not apply when a lineup is conducted before the crime occurs. Thus, a Dessureault hearing to examine the suggestiveness of a July lineup was not required before the trial of the counts relating to the subsequent August and October sales. We find no error.

BAD-ACT TESTIMONY

Padilla next claims that the state improperly elicited certain testimony at both trials which allegedly implied the existence of prior bad acts. At the first trial one of the officers indicated that he had had contact with Padilla and had seen a photograph of him before the August and October sales. He also testified that he had asked Padilla for some heroin and Padilla responded "Do you want another one?" The officer also indicated that customarily his duties as an undercover officer consisted of making purchases from "known dealers."

Padilla argues that all of these statements taken together constitute an impermissible reference to prior bad acts, that even if admissible there was not enough evidence of the acts to get them to a jury, and that he was therefore denied a fair trial by their occurrence. We disagree.

Padilla had given notice of a defense of mistaken identity. The testimony regarding prior bad acts was admissible as an exception to rule 404(b), Arizona Rules of Evidence, since it tended to prove the accuracy of the identification of Padilla by the officers. Presumably the alleged prior bad-acts testimony generally referred to the July sale and the circumstances surrounding it. Since there was a subsequent conviction based on that event, the prior bad-act evidence met the additional evidentiary requirements of State v. Marahrens, 114 Ariz. 304, 560 P.2d 1211 (1977).

During the second trial, certain testimony was elicited by the state which Padilla also characterizes as evidence of prior bad acts. We simply do not believe it can be so labeled. The following are the...