State v. Petralia, 2609

• Decision Date: 18 April 1974
• Docket Number: No. 2609,2609
• Citation: 521 P.2d 617,110 Ariz. 530
• Parties: The STATE of Arizona, Appellee and Cross-Appellant, v. Carl Anthony PETRALIA, Jr., Appellant and Cross-Appellee.
• Court: Arizona Supreme Court

Page 617

521 P.2d 617

110 Ariz. 530

The STATE of Arizona, Appellee and Cross-Appellant, v. Carl Anthony PETRALIA, Jr., Appellant and Cross-Appellee.

No. 2609.

Supreme Court of Arizona, In Banc.

April 18, 1974.

Rehearing Denied May 21, 1974.

Gary K. Nelson, Atty. Gen., by Grove M. Callison and R. Wayne Ford, Asst. Attys. Gen., Phoenix, for appellee and cross-appellant.

Cavness & DeRose and John W. Rood, Phoenix, for appellant and cross-appellee.

CAMERON, Vice Chief Justice.

This is an appeal by the defendant, Carl Anthony Petralia, Jr., from a judgment of guilt to the crime of possession of a dangerous drug for sale, §§ 32--1970(C), 32--1996(C), and 32--1901 A.R.S., and a cross-appeal by the State from the sentence of not less than one year nor more than life imprisonment in the Arizona State Prison.

The defendant presents the following issues on this appeal:

1. Was the State's evidence obtained as the result of an illegal wiretap?

2. Was it error for the court to allow the State to present evidence concerning a prior sale of dangerous drugs by the defendant?

3. Was the package of dangerous drugs obtained as a result of the prior sale improperly admitted in evidence?

4. Did the defendant establish entrapment as a matter of law?

The State, pursuant to § 13--1712 A.R.S., appeals on a single ground, asking that we either reinstate the original sentence imposed by the court (25 years to life imprisonment), but later vacated for resentencing in accordance with State v. Hays, 109 Ariz. 123, 506 P.2d 254 (1973), which has since been overruled by this Court in State v. Lewis, 109 Ariz. 466, 512 P.2d 9 (1973), or, in the alternative, that we remand for resentencing.

The facts necessary for a determination of these matters on appeal are as follows. In the early part of the year 1972 the defendant, Carl Anthony Petralia, Jr., was the subject of independent investigations by both the Police Department of the City of Phoenix, Arizona, and the Arizona Department of Public Safety. On 21 April 1972 the Phoenix police obtained a wiretap order pursuant to former § 13--1057 A.R.S. (repealed by § 1, Ch. 149, Laws of 1972), authorizing a tap on the defendant's phone for the period of 21 April 1972 through 11 May 1972.

On 26 May 1972 one Darla Merrill contacted Detective Koelsch of the Department of Public Safety to arrange a meeting in Tempe between Detective Koelsch and her boyfriend, John Michael Vigerito. She indicated that Vigerito might be able to aid the Department of Public Safety in its investigation of the defendant. At their meeting Vigerito told Koelsch that he had previously obtained methamphetamine from Petralia, and that he would be willing to help the Department of Public Safety in exchange for dismissal of criminal charges which were pending against him and Darla Merrill. Apparently, either at that meeting or sometime thereafter, Vigerito requested and was given $1000 as an additional incentive.

On 29 May 1972 Detective Koelsch contacted Patrolman Lash of the Phoenix Police Department to discuss the possibility that the city police would recommend dismissing the charges against Vigerito and Merrill. Lash had been involved in the wiretap of the defendant's phone and was also partly responsible for the charges pending against Vigerito and Merrill. Patrolman Lash stated at that time that he had no objection to the dismissal of the charges, and he also expressed his opinion that Vigerito could most likely be of assistance to the Department of Public Safety.

On 31 May 1972, working in concert with the Department of Public Safety, Vigerito went to Petralia's apartment to arrange to buy some methamphetamine. On 3 June 1972 a supervised sale took place, whereby the Department of Public Safety gave Vigerito $900 in recorded bills and an automobile which was owned by the Department and had been searched and found to be clean of any narcotics. Under the surveillance of the law enforcement officers Vigerito met Petralia in the parking lot of Hobo Joe's Restaurant where he received approximately four ounces of methamphetamine in exchange for the $900. Petralia was not arrested at that time nor was he ever charged with possession or sale relating to the incident on 3 June.

Another supervised sale was arranged for 5 June 1972. This time Vegerito was given $2500, again in prerecorded bills, with which to purchase 1/2 pound of methamphetamine. Vigerito gave the defendant the $2500 and it was agreed that Vigerito would receive the drugs in the parking lot of the Nantucket Lobster Trap Restaurant. Officers observed the defendant hand Vigerito a brown paper bag which was seized and later determined to contain approximately 1/2 pound of methamphetamine. Laboratory tests on the bag also revealed the defendants fingerprints. Petralia was immediately arrested, but a search for the prerecorded currency proved futile. The officers thereafter secured a search warrant for the defendant's apartment. The search turned up over $7000, including the $2500 and $900 in recorded bills, another 1/2 pound of methamphetamine, a set of scales of the type frequently used to weigh drugs or narcotics, and a supply of glassine bags frequently used to package narcotics or drugs.

On 8 June 1972 the Maricopa County Grand Jury returned an indictment charging the defendant in two counts for possession of a dangerous drug for sale. Count I related to the quantity of methamphetamine which the defendant possessed in the parking lot of the Nantucket Lobster Trap Restaurant, and Count II related to the quantity of methamphetamine later seized from the defendant's apartment during execution of the search warrant.

Prior to trial the defendant moved to suppress the State's evidence as the result of an illegal wiretap. At the conclusion of the hearing on the motion to suppress the trial court determined that there was no nexus between the evidence upon which the State built its case and the wiretap conducted by the Phoenix police, and therefore denied the defendant's motion without reaching the question of the constitutionality of the wiretap statute.

The defendant also made a motion in limine prior to trial to prevent the State's presenting any evidence concerning the 3 June supervised sale for which no charges had been brought. That motion was likewise denied.

The defendant waived his right to a jury, and went to trial before the court. The informant, Vigerito, was not available and did not testify. The defendant testified on his own behalf. He admitted all substantial elements of the crime, but claimed he was entrapped into committing the offense. The court adjudged the defendant guilty of Count I of the indictment, but dismissed Count II. After a hearing in aggravation and mitigation the defendant was sentenced to from 25 years to life. However, that sentence was later vacated, and the defendant was resentenced to from one year to life pursuant to a previous decision of this court, State v. Hays, 109 Ariz. 123, 506 P.2d 254 (1973), which decision was, after the resentencing in this case, reversed. State v. Lewis, 109 Ariz. 466, 512 P.2d 9 (1973).

WAS THE STATE'S EVIDENCE THE RESULT OF AN ILLEGAL WIRETAP?

The defendant's first argument is two-prong. He argues that the statute pursuant to which the wiretap on his phone was authorized was unconstitutional. He then argues that the State's case was built, at least in part, from information obtained through the illegal wiretap. He concludes that the State's evidence should therefore have been suppressed as the fruit of a poisonous tree. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We need not determine the constitutionality of former § 13--1057 A.R.S., 1968, repealed by § 1, Ch. 149, Laws of 1972, for we agree with the finding of the trial court at the close of the hearing on the motion to suppress that there was no connection between the case built by the Department of Public Safety and information which may have been gleaned from the Phoenix, Police Department's wiretap.

At the hearing on the motion to suppress, four law enforcement officers testified. Three of the officers, Detective Koelsch, Sergeant Moody, and Agent Dowd, were employed by the Department of Public Safety and were directly involved in the investigation and arrest of the defendant. The other officer, Patrolman Lash, was employed by the Phoenix Police Department and was one of three officers who had monitored the wiretap on the defendant's phone.

Patrolman Lash testified that in December, 1971, he had arrested Vigerito for narcotics violations. He stated that beginning with that arrest he had talked to Vigerito on several occasions concerning his relationship with the defendant, and that he had suggested that Vigerito might benefit if he were to assist the police in apprehending the defendant. The wiretap on the defendant's phone commenced on 21 April 1972 and continued until 11 May 1972. Lash testified that he did not have any conversations with Vigerito during that entire period, although he admitted that in monitoring the wiretap he had heard conversations between the defendant and someone called 'Mike' whom he believed to be Vigerito. On or about 26 May 1972, after the wiretap had ceased, Detective Koelsch was contacted by Darla Merrill, and he met with Vigerito later that same day. On 29 May 1972 Koelsch called Lash to discuss the possible dismissal of charges against Vigerito and Merrill. During the course of the conversation Lash indicated to Koelsch that Vigerito could probably be of assistance to the Department of Public Safety. When asked by defense counsel on what he based his opinion Lash replied:

'* * * I based that statement on the fact that I received information in January or December of 1971 reference Michael Vigerito and his narcotics transactions and that Michael Vigerito obtained his narcotics from the big man, Carl. Based on the information I had from a confidential, reliable...