State v. Reyes, 1504
| Decision Date | 08 December 1965 |
| Docket Number | No. 1504,1504 |
| Citation | 14 A.L.R.3d 1262,408 P.2d 400,99 Ariz. 257 |
| Parties | , 14 A.L.R.3d 1262 The STATE of Arizona, Appellee, v. Moises REYES, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee.
Chris T. Johnson, Phoenix, for appellant.
Moises Reyes, hereinafter referred to as defendant, was tried, convicted, and sentenced to serve not less than six nor more than eight years in the Arizona state prison on each of two counts for the unlawful sale of narcotics, in violation of A.R.S. § 36-1002.02, as amended, the terms to be served consecutively. From the conviction and sentence he appeals.
At approximately 12:15 a. m., December 9, 1963, Albert Dominguez, special employee of the Department of Liquor Licenses and Control, accompanied by an unidentified woman, left a tavern located at 3d Street and Jefferson in Phoenix, Arizona. He met defendant outside the tavern, and defendant agreed to sell Dominguez a paper of heroin. The three then drove in Dominguez's car to a parking lot across from defendant's hotel, located at 7th Street and Madison, also in Phoenix. Defendant went into the hotel, and returned shortly with the 'paper,' for which Dominguez gave him ten dollars. A. F. Barrios, agent of the narcotics division of the state liquor control, observed the meeting of defendant and Dominguez, and followed them to the parking lot, but did not see the actual exchange of money for heroin. After leaving defendant, Dominguez met agent Barrios, and handed him the paper of heroin later introduced in evidence.
On January 5, 1964, at approximately 3:10 p. m., Dominguez went to defendant's room in the vicinity of 7th Street and Buckeye Road, Phoenix, and again agreed to buy heroin from defendant. Dominguez drove defendant to 3d Street between Washington and Jefferson Streets, in Phoenix, and gave him ten dollars. Defendant was gone a short time, and returned with a paper of heroin. Dominguez drove defendant to his room, and then went home. Captain George Dowell of the narcotics division of the state liquor control went to Dominguez's home the same night and obtained the paper of heroin from Dominguez which 'paper' was introduced later in evidence.
Defendant first claims prejudicial error based on the following cross-examination of Dominguez:
'Q Have you ever taken heroin yourself?
* * *
* * *
'Q Are you now a narcotic addict?
* * *
* * *
'Q Mr. Dominguez, have you ever sold narcotics to the Defendant before?
'A Never, sir.
'MR. MARTIN: Object to that.
* * *
* * *
'(At the bench.) THE COURT: The witness is not on trial. Your question, that last one, 'Have you ever sold narcotics to the Defendant before'--there is no evidence before this Jury that he has ever sold narcotics to this Defendant before or after.
The trial court did not err in sustaining the objection to the question 'Have you ever taken heroin yourself?'. The question is too broad. Generally a witness may be cross-examined as to whether he is under the influence of drugs at the time of testifying. People v. Buono, 191 Cal.App.2d 203, 12 Cal.Rptr. 604; and 52 A.L.R.2d 848. In the instant case the court did permit testimony as to the witness being under the influence of drugs at the time of his testimony:
'Q Are you under the influence of drugs right now?
'A No, sir.'
The rule is well settled in Arizona that a witness may not be impeached by showing specific acts for which he has not received a felony conviction. State v. Johnson, 94 Ariz. 303, 383 P.2d 862; State v. Harris, 73 Ariz. 138, 238 P.2d 957. Under this rule the trial court did not err in admonishing defense counsel for asking the witness if he had ever sold narcotics to defendant before. Defendant's first and second assignments of error are unfounded.
Next, defendant contends the lower court erred in allowing narcotics agent Barrios to testify over objection as to a field test to find heroin content when he had not been qualified as an expert. We have held many times that it is in the discretion of the trial court whether a witness, designated expert or not, is competent to testify on a given matter. Hadley v. State, 25 Ariz. 23, 212 P. 458. However, this could not have been prejudicial error for the reason that an expert testified the paper contained heroin, and there was no evidence on the part of defendant to contradict this testimony.
Defendant assigns as error the trial court's refusal to give his requested instruction on entrapment. Such an instruction is properly refused where the trial court finds no evidence to support this theory. State v. Akin, 75 N.M. 308, 404 P.2d 134; Jones v. State (Okl.Cr.), 321 P.2d 432. The defense of entrapment requires that the intent to commit the crime must not arise in the mind of the accused. State v. Saenz, 98 Ariz. 181, 403 P.2d 280; State v. Hernandez, 96 Ariz. 28, 391 P.2d 586. In State v. Chavez, 98 Ariz. 236, 403 P.2d 545, we said:
"'* * * the defense of entrapment does not arise where one is ready to commit the offense given but the opportunity, * * *."
"Entrapment occurs only when there is undue persuasion, deceitful representation, or inducement to commit a crime which a defendant had not contemplated and would not otherwise have committed. * * *" 98 Ariz. at 240, 403 P.2d at 548.
In the instant case defendant supports his contention based on testimony of Dominguez, first, that he had been looking for some one most of the night from whom to make a buy, and, second, that when defendant answered his door and Dominguez asked him if he had any heroin, defendant answered that he did not, but that he could obtain some. Therefore, defendant argues, Dominguez approached defendant, and originated in defendant's mind the thought of making the sale. We cannot agree with this contention. In State v. Akin, supra, the court, in sustaining the trial court's refusal to instruct on the defense of entrapment, said:
'Also, in Roybal [State v. Roybal, 65 N.M. 342, 337 P.2d 406], we stated that while suspected persons can be tested by being offered an opportunity to transgress the law, they may not be put under any extraordinary temptation or inducement, and cited United States v. Wray, D.C., N.D., Ga., 8 F.2d 429, wherein, with respect to the question of what constitutes undue persuasion or enticement, the court said, in part:
"* * * A suspected person may be tested by being offered opportunity to transgress in such manner as is usual therein, but may not be put under extraordinary temptation or inducement. * * * The question, I repeat, is not one of laying a trap or of trickiness or deceit, but one of seduction or improper inducement to commit crime. The former is permissible and often necessary to enforce the law. The latter is not. * * *' * * *' 404 P.2d at 136
Here, Dominguez provided merely the opportunity to sell, and there was neither undue prejudice, deceitful representation or inducement to do so.
Defendant contends that the evidence was insufficient to show that he sold the narcotics to the informer. This contention is unfounded, as is shown by the statement of facts. There was without question sufficient evidence to submit to the jury. Dominguez testified as to both sales. Agent Barrios testified that while he did not see the actual sale in the first count he had followed defendant to the place of the sale. There was uncontradicted evidence in both counts that the 'paper' which Dominguez furnished contained heroin.
We have repeatedly held, in reviewing the sufficiency of evidence to support a verdict, the evidence must be viewed in the light most favorable to the state, and all reasonable inferences be resolved against defendant. State v. Mangrum, 98 Ariz. 279, 403 P.2d 925; State v. Moraga, 98 Ariz. 195, 403 P.2d 289; State v. Chavez, supra.
The next assignment of error is based on cross examination of Joe Reyes, brother of defendant, as follows:
'Q Have you ever been convicted of a felony?
'A No, sir.
'Q Where were you yesterday?
'A County Jail.
'Q All day?
(Whereupon, a conference was held at the bench.)
'A Over in Division 17.
'Q And, what were you doing there?
'A I was in Court.
'Q For what?
'A Narcotics.
'Q What happened?
'A They found me guilty.'
A witness may be impeached on cross examination by a showing of conviction of felony, not too remote in time. State v. Loftis, 89 Ariz. 403, 363 P.2d 585; State v. Harris, supra. Defendant contends that Reyes had not been convicted of a felony because at the time of his cross-examination there had been only a verdict of guilty by the jury, and no judgment or sentence entered thereupon. This contention is without merit. We recently held that a...
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State v. Jeffers, 4253
...Wilson v. United States, 232 U.S. 563, 34 S.Ct. 347, 58 L.Ed. 728 (1913) (witness on morphine at time testified). See, State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965) (by implication); State v. Arriola, 99 Ariz. 332, 409 P.2d 37 (1965) (by implication). The question of reliability here, j......
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...the credibility of a witness, of a verdict of guilty upon which no judgment has been entered or sentence passed. State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965); 98 C.J.S. Witnesses § 507 (1957); Annot., 14 A.L.R. 3d 1272 (1967). Moreover, even if no other disabilities were incurred, ther......
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§ 22.05 IMPEACHMENT: SENSORY AND MENTAL DEFECTS
...Taylor had been high when he was testifying, that would certainly have been appropriate to point out to the jury. . . ."); State v. Reyes, 408 P.2d 400, 402 (Ariz. 1965) ("Generally a witness may be cross-examined as to whether he is under the influence of drugs at the time of testifying.")......
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§ 22.05 Impeachment: Sensory and Mental Defects
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