State v. MacK

654 P.2d 23, 134 Ariz. 89, 1982 Ariz. App. LEXIS 563

• Court: Court of Appeals of Arizona
• Decided: September 30, 1982
• Docket: 1 CA-CR 5111, 1 CA-CR 5112
• Status: Published

Opinions

OPINION

EUBANK, Judge.

Following a jury trial appellant Mack was convicted of sale of a narcotic drug (cocaine) a class 2 felony in violation of former A.R.S. § 36-1002.02.¹ He subsequently pled guilty to two unrelated counts of possession of marijuana, class 6 felonies in violation of former A.R.S. § 36-1002.05.² These matters were consolidated for sentencing and on December 9, 1980 he was placed on probation for a period of six years for his conviction of sale of cocaine and was sentenced to terms of 1.9 years imprisonment on his convictions of possession of marijuana, with the marijuana convictions to be served consecutive to each other and concurrent with the cocaine sentence. He was also ordered to be incarcerated for a period of 60 days as a condition of his probation to be served concurrently with the first possession of marijuana sentence.

The testimony at the cocaine trial was brief because appellant’s sole defense was entrapment. Officer Vincent Lopez, an undercover narcotics officer with the Coconino County Sheriff’s Department, testified that on the evening of January 26, 1980 he went to appellant’s home with a “confidential informant” named. Richard Nanez. After a short conversation, Nanez went outside whereupon appellant sold Lopez a small amount of cocaine for $80.00. Nanez had apparently worked as an informant for other narcotic officers, but Officer Lopez testified that he had not met Nanez before that evening, had not had any previous conversations with him and did not know where appellant received the cocaine sold to Lopez.

In support of his entrapment defense, appellant testified that he had known Nanez for over ten years; that he knew him as a cocaine dealer who dealt all over town; that he had purchased one foil of cocaine from Nanez for $80 several days prior to the Wednesday that Nanez brought two additional foils of cocaine to his house for appellant to keep for him; that the next day he and another person, who he refused to reveal, opened the foils and examined them and “we did a little bit of it up”, which meant that “we put some on our finger and rubbed it across our gums”; that he stored Nanez’s two foils with his one foil in a white canister in his bedroom; that when Nanez brought Officer Lopez to his house, and then left, appellant poured the three foils, which all looked alike, from the canister onto the table and sold Officer Lopez one and one-half foils for $80; and that he kept the other one-half of the foil for his trouble.

He also testified that when he was arrested he made a statement to Officer Sterling Norgaard regarding the person who supplied him. He named a supplier, not Nanez, but at the trial claimed he had lied to Officer Norgaard in the statement but was telling the truth on the witness stand.

By the date of trial, Nanez apparently could not be located. In reliance on State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972), appellant argues that because Nanez was not produced as a witness, the state failed to rebut his defense of entrapment and therefore he was entitled to a directed verdict on the issue of entrapment as a matter of law. While appellant is correct that entrapment is established as a matter of law when a defendant raises a substantial and reasonable defense of entrapment and the state fails to rebut the defense, State v. Cox, 110 Ariz. 603, 522 P.2d 29 (1974), here, the state rebutted the entrapment defense when it presented testimony through Officer Norgaard that when appellant was arrested, he told Norgaard the names of his suppliers of the cocaine and they did not include Nanez. Thus, where there is evidence in the record that the contraband was supplied by a third party, the defense of entrapment was substantially rebutted. State v. Quinonez, 119 Ariz. 208, 580 P.2d 346 (1978). Therefore, the issue of appellant’s credibility regarding his entrapment defense was for the jury. State v. Petralia, 110 Ariz. 530, 521 P.2d 617 (1974). The trial court instructed the jury on the entrapment defense (R.A.J.I., Criminal 1.15), and by their verdict the jury rejected it, impliedly finding no entrapment. The record fully supports this conclusion since appellant’s testimony was internally inconsistent and he was impeached. On the basis of lack of credibility, the jurors could disbelieve appellant.

Next, appellant argues that the trial court erred in ruling that he could not call a private investigator as an expert witness to attack the reliability, procedures and use of the “confidential reliable informant” Nanez in this case and of informants in general as used in narcotics investigations. The witness was offered as an expert witness under Rule 702, Arizona Rules of Evidence which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The admission of expert testimony is a question within the sound discretion of the trial court which will not be disturbed on appeal absent a clear abuse of discretion. State v. Fierro, 124 Ariz. 182, 603 P.2d 74 (1979). Here, although the intended relevancy of the proffered testimony is not entirely clear from the briefs, it appears that the testimony was being offered to attack the reliability of Nanez and to impeach the testimony of Officer Norgaard as to his failure to make a departmental report.

As mentioned earlier, Nanez was not presented as a witness at trial and there was no testimony that in this investigation the police in any way relied upon information given by Nanez. Thus, his reliability was not a fact in issue and the expert testimony was properly rejected insofar as it was offered to attack Nanez’ reliability.

As to the failure of Nogaard to prepare a departmental report, no foundation was presented in appellant’s offer of proof indicating that the investigator was familiar with police procedures where Officer Norgaard worked and therefore he failed to show that the witness was competent to give an expert opinion on this precise issue. See Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326 (App.1978). Thus, we find no abuse of discretion in precluding the testimony of the expert witness.

The dissent does a good job in collecting the entrapment cases, however, the facts here do not show a defendant without intent to violate the law. Rather, the evidence shows one who purchased, used, intended to sell and did sell cocaine and in the process made one-half foil or a $40 commission on the sale. The facts here are more similar to those in State v. Vallejos, 89 Ariz. 76, 358 P.2d 178 (1960).

Turning to the appeal from the pleas of guilty to two counts of possession of marijuana, appellant has presented no arguments on appeal. We have reviewed the record for fundamental error as required by A.R.S. § 13 — 4035 and find none.

The judgments of conviction and sentences are affirmed.

HAIRE, J., concurs.

1 . Navajo County Cause Number CR-6537.

2 . Navajo County Cause Number CR-6541.