Valerio v. State

• Decision Date: 06 November 1975
• Docket Number: No. 4456,4456
• Citation: 542 P.2d 875
• Parties: Ruben VALERIO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 875

542 P.2d 875

Ruben VALERIO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4456.

Supreme Court of Wyoming.

Nov. 6, 1975.

Rehearing Denied Dec. 10, 1975.

Richard F. Pickett, Loomis, Lazear, Wilson & Pickett, Cheyenne, for appellant.

Frank Mendicino, Atty. Gen., David A. Kern, Asst. Atty. Gen., Cheyenne, Thomas J. Carroll, County Atty. for Laramie County, Cheyenne and George A. Zunker, Graduate Law Student, for appellee.

Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and ARMSTRONG, D. J., Retired.

ARMSTRONG, District Judge, Retired.

Appellant, Ruben Valerio, was convicted by a jury of two counts of delivering cocaine, a controlled substance, to Alfredito Sanchez and sentenced by the trial court on June 10, 1974, to serve concurrent terms of fourteen to seventeen years on each count in the state penitentiary.

The testimony establishes that Sanchez sold an ounce of cocaine on January 6, 1973, to two men who, unknown to him, were narcotics agents. He was paid with twelve one hundred dollar bills whose serial numbers had been recorded by the agents. At the same rendezvous, they arranged to make another purchase. On January 8, 1973, the three men met again. Sanchez testified that he called the appellant and then informed the agents that his source could supply three-fourths of an ounce of cocaine for $900.00 and to meet him later that evening.

Agents from the Attorney General's Criminal Investigation Division placed Sanchez under surveillance and observed him briefly visiting the residence of the appellant, and then meeting the agent-purchasers at the parking lot as agreed. The transaction was consummated and the $900.00 paid for the drug was again marked money.

Sanchez testified he immediately called appellant and arranged to meet him at the same parking lot. Shortly after the call, Valerio was observed by surveillance officers leaving his home and meeting Sanchez.

The narcotics agents again contacted Sanchez for another purchase of a larger quantity of cocaine on January 11, 1973. Sanchez again testified that appellant supplied him with the required amount and the sale was made. Again the officers paid Sanchez $5,000.00 in recorded currency. Surveillance teams testified that Sanchez went to appellant's residence shortly after receiving the money. Sanchez testified that he gave the money to appellant's wife, who denied it.

A week later, January 18th, the agents obtained a search warrant for appellant's home which authorized the search and seizure of only cocaine. No drug was found in the premises, but $1,950.00 of the recorded money, paid on January 8th and 11th, was recovered. Mrs. Valerio testified that the $1,950.00 was money paid by Sanchez to appellant for a motorcycle.

Appellant assigns six alleged errors which he asserts were committed during the trial of his case. Each will be discussed separately.

The appellant's first alleged error is that he was deprived of the opportunity to use an impeaching witness to attack Sanchez's credibility after he (Sanchez) denied that he used cocaine although he admitted use of marihuana. There was no evidence, nor offer of proof, that Sanchez was under the influence of drugs when he testified, or when the events occurred to which he testified, nor that his mental faculties were impaired for any reason.

An annotation in 52 A.L.R.2d 848 states:

'* * * The view adhered to by what may be called the weight of authority is that testimony as to narcotic addiction, or expert testimony as to the effects of the use of drugs, is not considered admissible to impeach the credibility of a witness unless followed by testimony tending to show that he was under the influence while testifying or when the events to which he testified occurred, or that his mental faculties were actually impaired by the habit.'

McCormick on Evidence 2nd Ed. on pp. 94 and 95 discusses and agrees with the rule stated in the A.L.R.2d note above. On the question of what is and is not admissible extrinsic evidence to impeach a witness by producing collateral facts, McCormick, at page 99, says in part:

'* * * Facts showing misconduct of the witness (for which no conviction has been had) * * * are collateral, and if denied on cross-examination cannot be proved to contradict.'

The new Federal Rules of Evidence, Rule 608, says in effect that the credibility of a witness may be attacked by opinion or reputation evidence which refers only to character for truthfulness or untruthfulness. Specific instances of the conduct of the witness for impeachment purposes may not be proved by extrinsic evidence, other than conviction of a crime.

Appellant's first assignment of error is without merit. State v. Sorenson, 34 Wyo. 84, 241 P. 707, 708 (Wyo.1925); Gabrielson v. State, 510 P.2d 534, 536 (Wyo.1973).

The second point urged by appellant on appeal is that the District Court did not require Sanchez to testify to the address of his residence during the pendency of the trial. There was no evidence offered to show that Sanchez was paid for testifying; nor was any evidence offered to demonstrate that he had any interest or bias in the outcome of the case, nor that any promise of leniency had been offered to him by the State with respect to the charges then pending against him.

The evidence sustains the prosecution's contention that Sanchez was not an informer, but was a participating witness and as such was entitled to be free from 'harassment or undue inconvenience by a defendant or his counsel either directly or indirectly.' The court's ruling on the nondisclosure of the witness's address was within its discretion and was a reasonable step taken to avoid such harassment. Jackson v. State, 522 P.2d 1286, 1289 (Wyo.1974), reh. den. July 10, 1974.

Furthermore, there was dialogue between counsel received out of the hearing of the jury that there was substantial reason to fear for the witness's safety. This alone would be sufficient ground to sustain the State's objection to divulging the witness's address. Smaldone v. U. S., 484 F.2d 311, 318 (10th Cir. 1973), reh. den. August 31, 1973; U. S. v. Crockett, 506 F.2d 759, 762 (5th Cir. 1975), reh. den. March 4, 1975.

Appellant was allowed liberal latitude in cross-examining Sanchez on all of his testimony except his address. The examination afforded appellant ample opportunity 'to place the witness in his proper setting,' Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 625, 628.

'* * * The witness should have an opportunity to demonstrate to the trial judge that the defendant's solicitation of his or her house address constitutes only an attempt to 'harass, annoy or humiliate."

U. S. v. Alston, 460 F.2d 48, 52 (5th Cir. 1972); U. S. v. Daddano, 432 F.2d 1119, 1128 (7th Cir. 1970).

There was no error in the Court's ruling on that objection.

Appellant's third assignment of error is the trial court's denial of his motions to suppress the introduction into evidence of 'marked' or 'recorded' currency found in defendant's home during the search on the ground that the search warrant specifically described only one item to be seized, namely cocaine.

The search warrant in this case was supported by an affidavit of James Cooper, one of the State's investigating officers. The affidavit consisted of seven pages: 31 numbered paragraphs and approximately 2,800 words. The only reference therein to marked or recorded money is found in a paragraph detailing the January 8th sale when Sanchez delivered a quantity of cocaine to an agent in exchange for $900.00 'in recorded Federal funds.'

The inventory of the property seized from appellant's home on January 18, 1973, listed ten items, three of which were money totaling $2,920.00. When seized, $1,950.00 of the currency was identified by serial numbers as being part of the purchase price paid by the agents for the cocaine received on January 8th and January 11th.

No cocaine was discovered during the search and cocaine was the sole item described in the warrant.

Appellant does not question the legality of the warrant but in his argument he contends that the recorded currency should have been suppressed and not allowed in evidence because it was not particularly described in the warrant. He postulates that the officers knew, or should have known, the recorded money would be in his house. This premise is not substantiated by any evidence. ¹ It could be as logically hypothesized that the officers believed that the money would have been removed from the residence during the week that intervened between the last sale and the search and that therefore they thought they lacked probable cause and, further, that they were concerned about an additional supply of a dangerous drug.

Appellant relies upon the last clause of Art. I, § 4 of the Wyoming Constitution, which is almost identical to the Fourth Amendment of the United States Constitution, which section reads:

'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.'

It is well established and we hold that, given a lawful search, some things may be seized in connection therewith which are not particularly described in the search warrant.

Marron v. U. S., 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Morales v. State, 44 Wis.2d 96, 170 N.W.2d 684, 689 (1969); Sanders v. U. S., 238 F.2d 145 (10th Cir. 1956); Bryant v. U. S., 252 F.2d 746, 749 (5th Cir. 1958); Johnson v. U. S., 110 U.S.App.D.C. 351, 293 F.2d 539 (1961), cert. den. 375 U.S. 888, 84 S.Ct. 167, 11 L.Ed.2d 118 (1963); Palmer v. U. S., 92 U.S.App.D.C. 103, 203 F.2d 66 (1953); U. S. v. Epstein, 240 F.Supp. 84, 86 (U.S.D.C.S.D.N.Y.1965); U. S. v. Donovan, 251 F.Supp. 477 (U.S.D.C.Ohio 1968),...