State v. Stanley
| Decision Date | 17 April 1979 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 597 P.2d 998,123 Ariz. 95 |
| Parties | STATE of Arizona, Appellee, v. David Earl STANLEY, Appellant. 2723/3764-PR. |
| Court | Arizona Court of Appeals |
On March 3, 1977, an information was filed against appellant, David Earl Stanley, and a co-defendant, Duane Lee Smith, charging both with Count I, conspiracy to commit armed robbery in violation of A.R.S. § 13-331(A); Count II, possession of narcotic drugs (cocaine) for sale in violation of A.R.S. § 36-1002.01; Count III, transportation of narcotic drugs (cocaine) in violation of A.R.S. § 36-1002.02; Count IV, importation of narcotic drugs (cocaine) in violation of A.R.S. § 36-1002.02; and charging appellant with Count V, possession of stolen property in violation of A.R.S. § 13-621. On April 1, 1977, the trial court granted appellant's motion to sever the trials of the co-defendants, and to sever Count V from the trial of the other four counts contained in the information. Appellant's case proceeded to a jury trial, and on April 15, 1977, the jury returned a verdict of guilty on all four counts. Following an aggravation/mitigation hearing, appellant was adjudged guilty of and sentenced on two of the counts, conspiracy in the first degree to commit armed robbery and transportation of a narcotic drug. On each of the two counts, the trial court sentenced appellant to not less than seven years nor more than twenty-one years in prison, with the sentences to run concurrently. Appellant filed a timely notice of appeal from the judgment and sentences, which is 1 CA-CR 2723. Thereafter appellant also filed a petition for review of the trial court's dismissal of his petition for post-conviction relief, which is 1 CA-CR 3864-PR. Because common questions of law and fact are involved, we consolidated the appeal and petition for review, designating 1 CA-CR 2723 as the primary number.
We will view the facts necessary to our disposition of this appeal and petition for review in the light most favorable to sustaining the jury's verdict of guilty. State v. Moore, 111 Ariz. 496, 533 P.2d 663 (1975).
Sometime in January of 1977, appellant, a resident of Vista, California, and Rodney "Skip" Halleck, a resident of Yuma, Arizona, conspired to rob a group of people who were selling a large quantity of coral stolen in California. While in California to arrange this robbery, Halleck decided that he did not want to go through with the scheme. Upon learning that Halleck was going to back out of the planned robbery, Appellant became extremely hostile toward Halleck, and threatened him with physical harm. Appellant then returned to Yuma.
On February 8, 1977, Halleck received a telephone call from appellant, who told Halleck that unless he sent him $500.00 or alternatively "set up" one of his friends for a sale of counterfeit narcotics, he would shoot Halleck and his wife and children. Immediately following this conversation, Halleck contacted the Yuma Police Department and explained the foregoing sequence of events to Sergeant Dean Burrow. Sergeant Burrow advised Halleck that, if he was contacted again by appellant, he should cooperate with him.
Later that same day, February 8, Halleck telephoned appellant, and told him that he did not have $500.00 and he did not want to "set up" any of his friends, but that he did not want any "trouble" either. Appellant told Halleck that he only wanted him to locate anyone with "money" and an interest in purchasing cocaine, to whom appellant could sell bogus cocaine. Halleck stated that he would try to find someone interested in buying cocaine. Following this conversation, Halleck reported to Sergeant Burrow.
The following day, February 9, Halleck telephoned appellant and informed him that he had found some people who wanted to purchase cocaine, but that appellant would have to have a sample available for the purchasers to inspect. When appellant asked Halleck to obtain the cocaine sample, Halleck responded that "It was his deal and he would have to get it."
On February 10, 1977, Halleck, in the presence of Sergeant Burrow and several narcotics agents, placed a telephone call to appellant from the offices of the Yuma City-County Narcotics Task Force. This telephone conversation was tape recorded by the officers with Halleck's knowledge. During this conversation, Halleck told appellant that he had located two potential buyers for his bogus cocaine sale, and that he would have to have a sample available at the time of the sale. On February 13, 1977, appellant called Halleck at his residence, but Halleck informed him that he was busy at the moment and would have to call him back. Halleck immediately contacted Agent Steven Hardy of the Narcotics Task Force, and thereafter met him at the Narcotics Task Force office. From that office, Halleck placed a return call to appellant. This telephone conversation also was tape recorded with Halleck's knowledge. During the conversation, appellant related to Halleck that he should inform the potential buyers that he had eight ounces of cocaine for sale and that the price would be $1,500.00 per ounce. Appellant also stated that he would not hesitate to kill the purchasers if there were any complications in making the sale of bogus cocaine.
The next day, February 14, while at home, Halleck had another telephone conversation with appellant. During this conversation, appellant stated that he had obtained the cocaine sample, and that he was about to leave Vista for Yuma.
Meanwhile in California, on February 11, 1977, appellant contacted a recent acquaintance, Duane Lee Smith, and asked him if he could obtain a small quantity of cocaine, explaining that he needed a sample for his planned sale of counterfeit cocaine. At that time, appellant asked Smith if he wanted to accompany him to Yuma, but Smith replied that he was not certain he wanted to.
On February 13, 1977, appellant called Smith at his house in Vista, and told him that he needed the cocaine sample quickly. On February 15, appellant again met with Smith and gave him $50.00 to purchase the cocaine sample. Smith thereafter purchased a small quantity of cocaine, and gave it to appellant. At that point, Smith decided to accompany appellant on his trip to Yuma.
In the afternoon of February 15, appellant and Smith left Vista by car, and headed toward Yuma. On the way, appellant stopped at a friend's house, and borrowed a shotgun. On the morning of February 16, appellant and Smith arrived in Yuma, and soon thereafter contacted Halleck, who directed them to his house.
While testing the shotgun at Halleck's house, Smith injured his hand, and was taken to the emergency ward of a local hospital. Shortly thereafter, Halleck called the Narcotics Task Force and informed them that appellant had arrived and was armed with a shotgun.
When Halleck and appellant returned to his house, appellant asked Halleck to call the potential narcotics buyer so that he could arrange to meet with him and make the sale. Halleck then called Agent Richard Stallworth, who, according to a prearranged plan, was to pose as the potential buyer. Appellant thereafter arranged to meet the undercover agent at a designated place later that day to make the sale of counterfeit cocaine. Following this telephone conversation, appellant and Halleck, equipped with eight bags of bogus cocaine, filled with flour, the genuine cocaine sample and the shotgun, picked up Smith at the hospital. From the hospital, they drove to the designated place of sale. There, appellant met the undercover agent and had Halleck give him the sample of genuine cocaine for inspection. After Agent Stallworth determined the sample was genuine, appellant and Smith were arrested. Following the arrests, the police searched appellant's vehicle, and seized a number of items, including the shotgun and eight bags of counterfeit cocaine.
At their arraignment hearing on March 7, 1977, both appellant and Smith pled not guilty to the aforementioned charges. After the trial court granted appellant's motion to sever the trials of the co-defendants, Smith entered a plea of guilty to a reduced charge of conspiracy in the second degree in return for a dismissal of the other charges against him. As mentioned before, appellant proceeded to trial and was eventually found guilty of Counts I through IV in the information, and sentenced on two of those counts.
On May 11, 1977, appellant filed a timely notice of appeal, and also requested that the trial court appoint substitute counsel on appeal. The trial court granted appellant's motion, and appointed substitute counsel for appeal. In an order filed November 28, 1977, this Court granted appellant's motion for leave to file a supplemental brief Pro se, so that he could raise points he felt were omitted in the opening brief of counsel on appeal.
On November 3, 1978, as stated above, appellant filed a petition for review of the denial of his Rule 32 petition, which we have consolidated with this appeal. Since the grounds for relief raised in the Rule 32 petition proceedings are essentially no more than a reiteration of several arguments presented in the opening and supplemental briefs on appeal, we will dispose of the several points raised in the Rule 32 petition in conjunction with our disposition of those same issues presented in the briefs on appeal.
In both the opening and supplemental personal briefs, appellant argues that he was denied a fair and impartial trial because of certain comments made by the prosecutor during his opening statement. Appellan...
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