State v. Sullivan

• Citation: 130 Ariz. 213,635 P.2d 501
• Decision Date: 15 October 1981
• Docket Number: No. 5098,5098
• Parties: STATE of Arizona, Appellee, v. Wilbert SULLIVAN, Appellant.
• Court: Arizona Supreme Court

Page 501

635 P.2d 501

130 Ariz. 213

STATE of Arizona, Appellee, v. Wilbert SULLIVAN, Appellant.

No. 5098.

Supreme Court of Arizona, In Banc.

Oct. 15, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Greg A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.

Ronald G. Saltsman, Phoenix, for appellant.

STRUCKMEYER, Chief Justice.

Appellant was convicted of selling a narcotic drug valued at not less than $250.00 in violation of A.R.S. § 36-1002.02(A) and (D) (now § 36-2531) and § 36-1002.10 (now § 13-801). He was sentenced to a term of five to seven years' imprisonment. Jurisdiction of this Court was acquired pursuant to Rule 47(e) (5), Rules of the Supreme Court, 17A A.R.S. Affirmed.

On September 6, 1978, undercover agents Parkey and Thrasher of the Arizona Department of Public Safety met with their informant, Yvonne Swindle, at a Big Boy Restaurant in Scottsdale, Arizona to discuss the purchase of a quarter ounce of cocaine from a person she knew as B.B. After talking to the agents, Swindle left the restaurant. When she returned a short time later, she was accompanied by appellant and Steven Thrasher. The officers approached Swindle's vehicle where appellant and Thrasher were waiting, and Agent Parkey asked the appellant if he could examine the "stuff." Appellant handed the officer a clear plastic bag containing a white powder later identified as cocaine. Believing that the substance was cocaine, Officer Parkey gave appellant six $100.00 bills. Appellant was thereafter arrested and subsequently, on August 17, 1979, he was tried and convicted on charges arising out of the transaction described above.

On appeal, appellant first urges that the trial court erred in denying his August 14, 1979 motion to continue his trial. Appellant's trial was originally set for December 18, 1978. Continuances were granted on December 9, 1978 and on February 16, March 16, May 1, May 16, May 23, June 8 and July 2, 1979. On July 17, 1979, appellant requested that the lower court dismiss the public defender then representing him and appoint other counsel not associated with the public defender's office. The court granted this motion, but conditioned it upon the understanding that there would be no further continuances. Subsequently, the lower court set trial for August 15, 1979. On August 14, 1979, appellant's new counsel sought a continuance in order to investigate the facts relating to a possible defense that the appellant had just brought to his attention. This defense related to an asserted agreement between appellant and Officers Oviedo and Barker of the Phoenix Police Department. According to the appellant, he was to supply the officers with information concerning a murder they were investigating. In turn, they were to arrange with Officers Parkey and Thrasher to have the charges in this case dropped. Appellant claimed that his participation in the instant drug transaction was fabricated by the arresting officers for the sole purpose of compelling his cooperation in the pending murder investigation.

Rule 8.5(b), Rules of Criminal Procedure, 17 A.R.S., provides "A continuance shall be granted only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice." Under this rule, the granting of a continuance is not a matter of right, but is left to the sound discretion of the trial judge. The trial judge's decision will not be disturbed unless there is a clear abuse of discretion and prejudice results. State v. Laffoon, 125 Ariz. 484, 485-486, 610 P.2d 1045 (1980). At the outset, we note that appellant had ample opportunity to investigate this possible defense, but has not satisfactorily explained why additional time was necessary. All of the facts relating to the defense were known to him within a short time after his arrest. Prior to August 14, 1979, eight continuances had been granted, some of them at the request of appellant. Appellant's previous counsel had ample time to explore all possible defenses. His current counsel had nearly a month to prepare appellant's case, in addition to the benefit of prior investigations conducted by appellant's previous counsel. In the closely analogous situation where a defendant seeks a continuance in order to secure the presence of a missing witness, we have upheld the lower court's denial of a continuance where the facts indicate that the defendant failed to exercise due diligence in obtaining the witness' presence. State v. Ebert, 110 Ariz. 408, 411, 519 P.2d 1149 (1974); State v. Wallace, 98 Ariz. 243, 246, 403 P.2d 550 (1965).

Moreover, at the time appellant's current counsel was appointed, it was agreed that his case would definitely be tried on August 15, 1979, and it was clearly understood that no further continuances would be granted. The trial judge was under no obligation to grant the appellant's request for change of counsel if it deemed the request dilatory. State v. Miller, 111 Ariz. 321, 322-323, 529 P.2d 220 (1974). The adherence to the August 15, 1979 trial date was not an abuse of discretion.

Finally, we fail to see how the appellant was prejudiced by the lower court's ruling. The record shows that the alleged defense was fully developed at trial. The appellant took the stand and denied selling cocaine to the undercover agent. He insisted that it was his companion, Steven Thrasher, who made the sale, and that the arresting officers falsified his participation in the transaction in order to secure his cooperation in an unrelated murder investigation. Defense counsel cross-examined both the arresting officers and Officer Oviedo concerning the facts surrounding the drug transaction and the subsequent agreement between the appellant and Officer Oviedo. In closing, counsel argued to the jury the appellant's version of the events. We are unable to say that appellant's claim that the charges against him were contrived failed because of insufficient preparation.

Closely related to appellant's previous argument is his claim that the lower court erred in permitting Officer Oviedo to testify. In an attempt to rebut the appellant's contention that he had been "framed", the State called Officer Oviedo to testify concerning the agreement he had entered into with the appellant. The appellant objected to the officer's testifying because he had not received prior notice of the State's intention to call the officer as a rebuttal witness as required by Rule 15.1(f), Rules of Criminal Procedure, 17 A.R.S.

The record is at best uncertain as to whether there was in fact noncompliance with the rules of discovery. Rule 15.1(f), Rules of Criminal Procedure, 17 A.R.S., states that "Upon receipt of the notice of defences required from the defendant under 15.2(b) the state shall disclose the names and addresses of all persons whom the prosecutor will call as rebuttal witnesses together with their relevant written or recorded statements." This rule has been interpreted as requiring the disclosure of only those witnesses called to rebut defenses noticed by the defendant pursuant to Rule 15.2, Rules of Criminal Procedure, 17 A.R.S. See State v. Lewis, 121 Ariz. 155, 160, 589 P.2d 29 (App.1978); State v. Shepherd, 27 Ariz.App. 448, 450, 555 P.2d 1136 (1976). In this case, appellant notified the prosecutor that he intended to show lack of general and specific intent. The State argues that notice of such a general defense did not put it on notice that it was necessary to call Officer Oviedo as a rebuttal witness. But as to specific defenses, such as alibi and insanity, the State will have knowledge in advance of proof required to rebut, and is therefore required to disclose the rebuttal witnesses. However, it is obviously unreasonable to require the State to list in advance of trial and prior to the presentation of the defendant's case the names of all potential rebuttal witnesses, since the prosecution can rarely anticipate what course the defense will pursue. State v. LaBarre, 115 Ariz. 444, 447, 565 P.2d 1305 (App.1977).

Appellant urges that as a part of his defense he intended to become a witness and testify as to his version of the events surrounding the drug sale. Prior to the start of trial, defense counsel moved to prevent the State from cross-examining appellant about his prior conviction for possession of a narcotic drug. The motion was denied. On appeal, appellant renews his contention that evidence of his prior conviction should have been excluded because its prejudicial nature far outweighed its probative value.

As a general rule, evidence of a prior conviction is not admissible to show that the defendant is a bad person or has a propensity for committing crimes of a similar nature. State v. Rose, 121 Ariz. 131, 135-136, 589 P.2d 5 (1978). Evidence of prior crimes, however, is admissible under Rule 609(a), Rules of Evidence, 17A A.R.S., for purposes of impeaching a witness' credibility. Under this rule, the court should make an on-the-record finding based on specific facts and circumstances that the probative value of admitting the evidence outweighs its prejudicial effect. State v. Ellerson, 125 Ariz. 249, 252, 609 P.2d 64 (1980).

The motion to limit the State's testimony in regard to the prior conviction was argued on July 2, 1979, at which time the court took the motion under advisement. The court denied the motion during the trial, finding that any prejudicial effect of the admission of the prior conviction of possession of a narcotic drug does not outweigh the probative value of the evidence.

As we pointed out in State v. Ellerson, supra at 252, 609 P.2d 64, when the State intends to offer a prior conviction in evidence for impeachment of a defendant, the trial judge should require the State to show the date, place and nature of the prior conviction and any other relevant circumstance. The defendant should be permitted to rebut the State's showing of relevancy by pointing out the prejudicial effect to...