State v. Shepherd

• Decision Date: 16 September 1976
• Docket Number: CA-CR,No. 2,2
• Citation: 27 Ariz.App. 448,555 P.2d 1136
• Parties: The STATE of Arizona, Appellee, v. William Michael SHEPHERD, Appellant. 794.
• Court: Arizona Court of Appeals

Page 1136

555 P.2d 1136

27 Ariz.App. 448

The STATE of Arizona, Appellee, v. William Michael SHEPHERD, Appellant.

No. 2 CA-CR 794.

Court of Appeals of Arizona, Division 2.

Sept. 16, 1976.

Bruce E. Babbitt, Atty. Gen., Phoenix by Heather A. Sigworth, Asst. Atty. Gen., Tucson, for appellee.

John M. Neis, Pima County Public Defender by Charles L. Weninger, Asst. Public Defender, Tucson, for appellant.

KRUCKER, Judge.

On August 13, 1975, William Michael Shepherd was arrested for auto theft in Tucson, Arizona. A subsequent search of the automobile he was driving revealed five papers of heroin in an aspirin tin located under the front seat.

This is an appeal from a jury verdict and a judgment of guilty to the crime of possession of heroin, A.R.S. §§ 36--1002 and 36--1002.10, as amended, and a sentence thereon of not less than two nor more than three years in the Arizona State Prison.

Appellant argues that:

'1. The trial court erred when it denied appellant's motion in limine concerning his heroin addiction.

2. The trial court erred when it allowed the testimony of Michael Click as a rebuttal witness because the witness was not disclosed and his testimony was improper rebuttal. The court also erred when it denied appellant's motion for a mistrial based on this prejudicial evidence.

3. The trial court erred when it denied the appellant's motion for a mistrial after a prospective juror made highly prejudicial remarks before the panel.'

We believe none of the points has merit and therefore affirm.

Appellant's first contention on appeal is that the trial court erred when it denied his motion in limine to prevent the introduction of evidence of his heroin addiction at the time of his arrest. He argues that such evidence is highly prejudicial and irrelevant, and that its prejudicial nature was compounded during the prosecutor's cross-examination of appellant.

It is the State's position that the evidence of addiction immediately before the crime charged is relevant to prove knowledge and intent to possess. In determining the relevancy and admissibility of evidence, the trial judge is vested with considerable discretion. Higgins v. Arizona Savings and Loan Association, 90 Ariz. 55, 365 P.2d 476 (1961); City of Phoenix v. Boggs, 1 Ariz.App. 370, 403 P.2d 305 (1965). As a general rule, evidence is relevant if it has any basis in reason to prove a material fact in issue. It is not necessary that such evidence be sufficient to support a finding of an ultimate fact; it is enough if the evidence, if admitted, would render the desired inference more probable. Reader v. General Motors Corporation, 107 Ariz. 149, 483 P.2d 1388 (1971).

'Broadly stated, the test of relevancy of proferred evidence is whether it tends to cast any light on the crime charged, or whether the proferred evidence is connected with the crime charged, or whether it tends to sustain or impeach a pertinent hypothesis, or whether it proves to disproves, or tends to prove or disprove, the crime charged or any fact material to the issue, or tends to make the proposition at issue more or less probable.' 22A C.J.S. Criminal Law § 600, at 388--89.

We are of the opinion that evidence of appellant's heroin addiction contemporaneous with the possession charged is admissible and relevant. Our conclusion is reinforced by the fact that appellant presented as a defense the fact that other persons had access to the car, and that the heroin was not his own, thus putting knowledge and intent at issue.

The probative value of such evidence is obvious. The addiction was a circumstance tending to connect appellant with the heroin. Cf., Brooks v. State, Okl.Cr., 438 P.2d 25 (1968). The desired inference was rendered more probable.

A similar fact situation occurred in People v. Gin Hauk Jue, 93 Cal.App.2d 72, 208 P.2d 717 (1949). There, the defendant was found in possession of hypodermic needles, opium pipes and opium, but denied ownership of the drugs and other paraphernalia. At the trial, evidence was introduced that the defendant's arms contained puncture marks (inferring addiction) at the time of the arrest. On appeal, the defendant contended that because he was charged only with possession of the narcotic, any attempt to inject testimony showing the use of narcotics was highly prejudicial. The court held:

'This evidence was clearly admissible as a circumstance showing 'possession' by defendant of the opium there found by the officers.' 208 P.2d at 718.

The court also failed to find prejudicial error in the prosecution's cross-examination where defendant was asked if he had been a long-time user of narcotics.

The closest Arizona authority on point appears to be State v. McFall, 103 Ariz. 234, 439 P.2d 805 (1968). There, the court held that appellant's possession of a narcotics kit was relevant and admissible in that it tended to connect him with the offenses charged because of the high degree of probability that a narcotics user would be likely to forge narcotics prescriptions to obtain a supply.

Our analysis of the above cases and principles leads us to conclude that the trial court did not err in denying appellant's motion. We further find that any possible harm arising from the prosecutor's exchange with the appellant was rectified when the court sustained the appellant's objection.

Appellant's second contention is that the trial court erred in allowing the testimony of a rebuttal witness in that the witness was not disclosed and the testimony was improper rebuttal. Rule 15. 1(f), Rules of Criminal Procedure, 17 A.R.S. (Supp.1975) provides in part that Upon receipt of notice of defenses (emphasis ours) required from the defendant under Rule 15.2(b), the State shall disclose the names and addresses of witnesses it will call in rebuttal. It is our opinion that appellant failed to comply with Rule 15.2(b) by not disclosing his defense of lack of knowledge and intent. Rule 15.2(b) is broad in scope and is not limited to...