State v. Shing

• Decision Date: 07 May 1973
• Docket Number: No. 2291,2291
• Citation: State v. Shing, 109 Ariz. 361, 509 P.2d 698 (Ariz. 1973)
• Parties: The STATE of Arizona, Appellee, v. William SHING, Appellant.
• Court: Arizona Supreme Court

Page 698

509 P.2d 698

109 Ariz. 361

The STATE of Arizona, Appellee, v.William SHING, Appellant.

No. 2291.

Supreme Court of Arizona, In Division.

May 7, 1973.

Gary K. Nelson, Atty. Gen., Phoenix, by William P. Dixon, Asst. Atty. Gen., and Albert M. Coury, Former Asst. Atty. Gen., for appellee.

Ross P. Lee, Maricopa County Public Defender, by James H. Kemper, Deputy Public Defender, Phoenix, for appellant.

CAMERON, Vice Chief Justice.

This is an appeal from a judgment of guilty to the crime of transportation of marijuana, § 36--1002.07 A.R.S., and a sentence thereon of from ten years to life imprisonment.

We are asked to answer the following questions on appeal:

1.Does the evidence support conviction for transportation of marijuana?

2.Was the sentence imposed on defendant based upon an invalid admission of an allegation of a prior conviction?

3.Did the prosecutor commit reversible error in his comments to the jury during closing argument?

The facts necessary for determination of the matter on appeal are as follows.In the morning of 27 August 1970, Mr. Settle, manager of the Chandler Municipal Airport, observed a plane land and taxi to an unusual parking place.The pilot of that plane, a Piper Aztec, was met shortly thereafter by a second man, later identified as the defendant Shing, driving a station wagon.The two men left the airport in the station wagon but returned some time later.The two men seemed to be watching the horizon for something.When the two men again left the airport, Mr. Settle walked out to the Aztec and thought it smelled of marijuana.This caused him to call the Sheriff's office.

Several detectives arrived and set up a surveillance.At that time the two men had returned to the airport and took off in the Aztec, leaving the station wagon at the airport.In the station wagon were several plastic containers of what smelled like aviation fuel.

At about 7:30 p.m., the Aztec returned and the two men were seen close to the Aztec, apparently waiting for something.About thirty minutes later, there was the sound of another aircraft.The Aztec took off and the station wagon began to leave with its lights off.The detectives observed the driver of the station wagon and later identified him as the defendant.At that time, another airplane made a very low pass over the field.The detectives followed the two planes by the navigational lights of the Aztec and the noise of the other plane.When the planes reached the South Mountain area of Phoenix, they appeared to descend.

The detectives proceeded to the Stellar City Airport, but the two planes were not there.Next, they proceeded to the Goodyear auxiliary strip, which had once been used by the Air Force but was now abandoned.There they found the Aztec, another plane, a ten passenger Dehaviland Dove, and the station wagon.The defendant Shing was found sitting in the station wagon and was arrested.The others fled and were not apprehended at that time.

The door of the Dehaviland was open and it could be seen that it contained a number of boxes.One of these had broken open and several smaller packages were lying on the floor.It was apparent that these smaller packages were similar to packages containing kilos of marijuana.There were seeds, stems, and leaves of marijuana on the floor of the Dehaviland.The officers noticed a strong odor of marijuana coming from the aircraft.The Dehaviland contained some 2600 pounds of marijuana.After being warned of his 'Miranda' rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), including the right to remain silent, the defendant was questioned concerning his presence at the airstrip and the identity of his companion.The defendant refused to respond to their questions.

At the trial Mr. Shing testified that he had no idea that the plane contained marijuana.He stated that he was offered $500 (one detective stated that Mr. Shing said $1000) to accompany a friend on a business trip.Mr. Shing claims that he was only following instructions and that he was supposed to put fuel into the Dehaviland.He refused to disclose the identity of this friend at the trial claiming his life would be endangered if he did.

DOES THE EVIDENCE SUPPORT CONVICTION FOR TRANSPORTATION OF MARIJUANA?

Mr. Shing was convicted of violating § 36--1002.07 A.R.S., which provides in part: 'Every person who transports * * * marijuana shall be punished by imprisonment in the state prison * * *.'

Defendant contends that he was an innocent bystander, that he had no knowledge of the illegality of the transaction, and there was no evidence he knew that the plane contained marijuana or that he knew that the substance in fact was marijuana and thus it was error to deny his motion for a directed verdict.

Defendant relies on Carroll v. State, 90 Ariz. 411, 368 P.2d 649(1962) which said:

'Mere presence at the scene of a crime is insufficient to establish guilt.In cases where the narcotic was found in a public place and conviction was sustained, there was involved a factor connecting the accused with the narcotic, independent of his presence at or near the location where the drug was found * * *.'(Footnote omitted)90 Ariz. at 413, 368 P.2d at 650.

In Carroll, supra, we were dealing with narcotics found in a public place accessible to many people other than defendant.In the instant case, we have a defendant who was paid a high salary to rent a car, drive in the dark of night to an abandoned airstrip to put gas into another airplane when that plane could have easily refueled at several other convenient locations in the area.Defendant was the only person present when arrested at the scene with some 2600 pounds of marijuana.Testimony indicated that the plane was loaded with boxes of marijuana in smaller packages, that the marijuana was visible inside the door of the plane, that the marijuana had a strong odor to it because it was damp.These circumstances strongly infer that defendant knew that some illegal activity was in progress and that there was ample evidence to support the conviction of transporting marijuana.

The best defendant could hope for at common law would be to be classified as a principal in the second degree.SeePerkins on Criminal Law, 2d ed. at apge 658.Arizona, however, has abolished the common law distinctions between degrees of principals and accessories before the fact. § 13--137, et seq., A.R.S.And further:

'All persons concerned in the commission of a crime whether it is a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and debt in its commission, or, not being present, have advised and encouraged its commission, * * * are principals in any crime so committed.'§ 13--139 A.R.S.See also§ 13--140 A.R.S.

WAS THE SENTENCE IMPOSED ON DEFENDANT BASED UPON AN INVALID ADMISSION OF AN ALLEGATION OF A PRIOR CONVICTION?

The defendant next claims that his sentence was based upon an invalid admission of an allegation of a prior conviction.He argues that since the admission is constitutionally void on its face, it is necessary to vacate his sentence.We do not, however, need to consider the validity of the prior conviction.Although there was an addendum to the information which alleged a prior conviction pursuant to § 13--1650 A.R.S. for robbery in the State of California and the minute entry of the plea while showing a plea of not guilty to the crime as charged also shows 'defendant admits allegation of prior conviction,' the judgment of guilt was for the crime as charged only and the record does not reflect a judgment of guilt as to the prior conviction.

Since the sentence imposed is within the statutory limits for transporting marijuana without a prior conviction, we cannot find any abuse of discretion in imposing sentence particularly considering the amount of marijuana involved.SeeState v. Smith, 107 Ariz. 218, 484 P.2d 1049(1971);State v. Carpenter, 105 Ariz. 504, 467 P.2d 749(1970).

DID THE PROSECUTOR COMMIT REVERSIBLE ERROR IN HIS COMMENTS TO THE JURY DURING CLOSING ARGUMENT?

At the trial on cross-examination by defendant's attorney, one of the sheriff's deputies was asked the following after stating that defendant had explained and read to him his rights from a 'standard rights card':

'I asked him if he wanted to talk to us.He said, 'Yea.'

'I told who I was naturally.I asked him how many people were there--originally were there.He didn't want to discuss that.I asked him if he wanted to tell me who it was.He said, 'No.'Later, Detective Lines returned with what we thought was a suspect, and I asked Mr. Shing if he would look at this person and identify him.He said, 'No."

Later the defendant took the stand and testified in his own behalf.On cross-examination he was asked:

'Q This person who hired you to make this business trip with him has a name, does he not?

'A Yes.

'Q You have never told anyone who this person, was before, have you?

'A No.

* * *

* * *

'Q Well, Mr. Shing, you have testified this morning that you knew this person for 10 years, and you were hired by this person to make a trip to Phoenix, and you were going to be paid for it.Can you tell who this person is?

'A Like I said, the reason why I didn't mention the name because I am afraid because the Sheriff's department advised me--told me earlier that my life in dangerous and at the same time after awhile I got to thinking, not only my life would be in dangerous but my family life would be in dangerous, too.'

In his closing argument the prosecutor commented:

'Perhaps, the most significant thing about * * * Mr. Shing's behavior was his silence.He had an opportunity to explain his presence at the airstrip.He didn't do so.He had an opportunity to identify someone else who might or might not be involved.The officers didn't know.He didn't know, but Mr. Shing did not avail himself of that opportunity.'

Defendant asserts for the first time on...