State v. Tuell

• Decision Date: 27 October 1975
• Docket Number: No. 2988,2988
• Citation: 541 P.2d 1142,112 Ariz. 340
• Parties: STATE of Arizona, Appellee, v. Larry TUELL, Appellant.
• Court: Arizona Supreme Court

Page 1142

541 P.2d 1142

112 Ariz. 340

STATE of Arizona, Appellee, v. Larry TUELL, Appellant.

No. 2988.

Supreme Court of Arizona, In Banc.

Oct. 27, 1975.

Bruce E. Babbitt, Atty. Gen., N. Warner Lee, Former Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Phoenix, for appellee

Bolding, Barber, Oseran & Zavala, by Richard Oseran, Tucson, for appellant.

GORDON, Justice:

Larry Tuell was convicted by a jury of unlawful sale of narcotics in violation of A.R.S. § 36--1002.02. He appeals from the judgment of conviction and sentence thereon.

On February 18, 1974, an informant and two undercover narcotics officers went to a residence in Tucson, Arizona to buy narcotics. The informant entered the house alone, left and re-entered the house with Officer Click. The other officer remained in the car. Once in the house, the informant introduced Officer Click to a person named 'Larry', the appellant, and then left the dimly lit room. The informant did, however, remain in the house. 'Larry' allegedly sold three papers of heroin to the officer in exchange for $30.00. The only other occupant in the room at the time was a female.

On February 20, 1974, appellant was arrested pursuant to warrant and charged with two felony counts: Unlawful sale of narcotics on February 18, 1974, Count I; and Unlawful possession of narcotics for sale on February 20, 1974, Count II. The counts were severed for trial pursuant to Rule 13.4, R.Crim.Proc. and we are here concerned only with the conviction on Count I. Appellant raises nine assignments of error.

I IDENTITY OF INFORMANT

Appellant first claims that the trial court abused its discretion in refusing to order disclosure of the state's confidential informant. The state may withhold from disclosure the identity of persons who furnish information of violations of law to law enforcement officers in furtherance of the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). State v. Tisnado, 105 Ariz. 23, 458 P.2d 957 (1969). Rule 15.4(b)(2). R.Crim.Proc. 17 A.R.S. Where, however, the disclosure of an informant's identity is relevant and helpful to the defense or in essential to a fair determination of a cause, the privilege protecting the name of a confidential reliable informant must give way. Roviaro v. U.S., supra; State v. Castro, 13 Ariz.App. 240, 475 P.2d 725 (1970). Thus, it may be necessary to disclose an informant's name to show the defendant's innocence, or assure him of a fair trial. State v. Benge, 110 Ariz. 473, 520 P.2d 843 (1974).

He argues that disclosure of the informant would have a bearing on the identity of the appellant as the person who sold heroin to the officer. This is for the reason that an inconsistency existed as to the correct description of the appellant. In his departmental report, Officer Click described 'Larry' as a white male, approximately 25 to 28 years of age, approximately 5 10 tall, weighing about 150 lbs. with dark hair, medium cut. Appellant is actually 33 years old, 6 6 tall and weighs 220 lbs. with brown hair, a mustache and tattoos on his arms and hands. Gary Hill, a person who resided with appellant is approximately 5 10 tall, weighing about 150 lbs. with tattoos on his hands.

An appellant seeking to overcome the state's policy of protecting an informant's identity, has the burden of proving that the informant is likely to have evidence bearing on the merits of the case. State ex rel. Berger v. Superior Court, 106 Ariz. 470, 478 P.2d 94 (1970). The appellant need not prove that the informer would give testimony favorable to the defense in order to compel disclosure of his identity; nor need he prove that the informer was a participant in or even an eye witness to the crime. His burden extends only to a showing that, in view of the evidence, the informer would be a material witness on the issue of guilt which might result in exoneration and that nondisclosure of his identity would deprive the defendant of a fair trial. State v. Castro, supra.

The appellant's sole defense was misidentification. It is clear from the record that the unidentified informant was a material witness who had very relevant information on the issue of guilt. The testimony of the state's witnesses placed him at the scene of the alleged crime just prior to the time it was committed. Appellant's cross-examination of Officer Click was not a substitute for the opportunity to examine the man who had set up the transaction, allegedly introduced the officer to the appellant, and was in the house when the transaction occurred. The informant could have identified that appellant as either the seller or an innocent party. Appellant demonstrated a reasonable possibility that the anonymous informant could give evidence on the issue of guilt which might result in his exoneration. State v. Castro, supra; and see State v. Godwin, 106 Ariz. 252, 475 P.2d 236 (1970).

We hold that the trial court erred in refusing to order the state to provide the name of the unidentified informer.

II MOTION IN LIMINE

Appellant next contends that the trial court erred in denying appellant's motion in limine.

At the omnibus hearing on April 2, 1974, the trial court ordered a severance of the two counts for trial. At that hearing appellant made a motion in limine to preclude the admission of subsequent criminal activity. The court did not rule upon the motion at this time.

The subsequent bad acts related to and were the result of a search and seizure of the appellant's residence and his arrest two days after the incident alleged in Court I which resulted in the allegations of Count II. A motion to suppress all evidence relating to Count II was also made at the omnibus hearing and was granted on April 23, 1974, five days after the trial on Count I.

On April 19, the second day of trial on Count I, the trial court ruled:

'THE COURT: No sir. Court is going to deny the motion in limine. Court is going to at this point introduce the evidence for the limited purposes of identity and intent.'

The court ruled that the subsequent bad acts were admissible but prohibited the state from using additional witnesses to present them. The court refused to preclude the prosecutor from impeaching the appellant with the subsequent bad acts.

The general rule is that evidence showing or tending to show the commission of another crime entirely distinct and independent of that for which a defendant is on trial is neither relevant nor admissible. Dorsey v. State, 25 Ariz. 139, 213 P. 1011 (1923). There are exceptions to this general rule. Evidence of another criminal act will be admitted if it directly establishes some essential element of the crime charged or has an independent relevancy for some purpose other than showing a probability that the accused committed the crime with which he is on trial merely because he is of criminal character. State v. Ballesteros, 100 Ariz. 262, 413 P.2d 739 (1966). Evidence of subsequent crimes cannot be used to establish knowledge in a prior instance. Intent, however, may properly be established by subsequent acts. State v. Hays, 17 Ariz.App. 202, 496 P.2d 628 (1972). However, where intent is not required to be specifically proved, or from the nature of the offense under investigation proof of the commission of the offense as charged necessarily establishes the criminal intent, or the intent is a necessary conclusion from the act done, evidence of the perpetration of other like offenses should not be admitted. Greve v. State, 36 Ariz. 325, 285 P. 274 (1930). In State v. Vallejos, 89 Ariz. 76, 358 P.2d 178 (1960), this court held that proof of the acts of possession or sale are sufficient to show intent and therefore would exclude evidence of other crimes. Thus, in order that intent may be shown from a subsequent act or crime, it must be a fact in issue. There was no showing that the intent in this case was a fact in issue. Rather, the sole defense was that of misidentification.

The question now turns on whether the evidence of subsequent bad acts could properly have been admitted on the issue of identity. Where the identity of a defendant is the question in issue, subsequent acts or crimes may be shown if they are relevant. State v. Chance, 92 Ariz. 351, 377 P.2d 197 (1963); State v. Francis, 91 Ariz. 219, 371 P.2d 97 (1962). There was no such showing of relevance in this case.

In Dorsey v. State, we stated:

'The evidence of Smith was neither offered nor received to show motive, intent, absence of mistake or accident, or a common scheme or plan, but to identify appellant as one of the robbers of McAndrews, his defense being an alibi. It is not apparent, however, howe proof of appellant's participation in the robbery of Smith on the 15th could identify him as the person who helped Hatton and Briley rob McAndrews on the 17th, or how it could tend to do so. They were separate, distinct, unconnected offenses committed two days apart, and there was nothing peculiar or novel in the method followed that would aid in pointing to him as one of the guilty parties in both instances.' 25 Ariz. at 144, 213 P. at 1012, 1013.

The same reasoning holds true in the instant case. It is not apparent how proof of the appellant's participation in the alleged The state argues that this issue is moot on appeal because appellant did not testify, and no evidence of any subsequent crime was presented. We reject this argument. Defense counsel claims that the ruling of the trial court had a 'chilling' effect on his decision to advise his client whether to take the stand or not. He further argues that it is this 'chilling' effect which keeps the question from being moot. The record shows that this dilemma was brought to the attention of the trial court:

sale of narcotics on February 20th could identify him as the person who sold Officer Click narcotics on February 18th or how is could tend to do so. They were separate, distinct,...