State v. Price

526 P.2d 736, 111 Ariz. 197, 1974 Ariz. LEXIS 394
CourtArizona Supreme Court
DecidedSeptember 25, 1974
DocketNo. 2899
StatusPublished
Cited by3 cases

This text of 526 P.2d 736 (State v. Price) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Price, 526 P.2d 736, 111 Ariz. 197, 1974 Ariz. LEXIS 394 (Ark. 1974).

Opinion

CAMERON, Vice Chief Justice.

The defendant Price appeals from jury verdicts and judgments of guilt to the crimes of unlawful sale of heroin, § 36-1002.02 A.R.S.; possession of marijuana (two counts), § 36-1002.05 A.R.S.; and assault with intent to commit murder while armed with a gun, § 13-248(B) A.R.S. He was sentenced to fifteen to twenty years for assault with intent to commit murder, two to four years each for the two counts of possession of marijuana, and eight to fifteen years for the sale of heroin.

Price raises three issues on appeal:

1. Was the evidence sufficient to sustain a guilty verdict of sale of narcotics ?
2. Did the- trial court err in denying defendant’s motion in limine to prevent certain hearsay testimony from being admitted?
3. Were the prosecutor’s comments in summation so prejudicial as to deny Price a fair trial ?

The defendant and three others were arrested by law enforcement officers following an attempted sale to undercover narcotics agents and a shoot-out in which defendant Price wounded an undercover agent. One of the defendants, Baca, as a result of a bargain, entered a plea of guilty to the crime of sale of narcotic drugs and the other charges were dismissed. Defendant Price along with codefendants Barrett and Moccia were jointly tried.

The evidence indicates that on the 27th of August 1973 Robert Wadman, a federal narcotics officer, met with Richard Anthony Barrett to discuss the possible purchase of narcotics. Defendant Price was not present at this meeting. Barrett told Wad-man that he, Barrett, could provide narcotics to Wadman and it was agreed that on the next day Wadman would meet with Barrett at the trailer house where Barrett and the defendant Price were living and where a quantity of cocaine would be available for inspection and purchase. Barrett warned Wadman to be careful to knock and wait to be admitted because he, Barrett, had a bodyguard. The bodyguard was evidently Price. Wadman and other agents quietly surrounded the trailer and Wadman went into the trailer and negotiated a sale with Barrett. At this time Wadman and Barrett remained in the living room of the trailer and the codefendants Baca, Moccia and Price remained in the kitchen which was curtained off from the living room portion of the trailer. After a discussion at which time it became apparent that cocaine was not obtainable, but that they had some heroin to sell, Barrett went back to the kitchen area and obtained some heroin for Wadman to inspect. Wadman testified that he heard discussion from the kitchen area concerning “the ounce” or “get the ounce.” In any event, Barrett returned with an ounce of heroin for Wadman’s inspection. After the agreement had been made on the transaction, Wadman and Barrett went outside to Wadman’s automobile where the money to purchase the heroin was located. Wadman drew his gun and announced in a loud voice that he was a federal agent and they were under arrest. Barrett fell to the ground and put his hands over his head [199]*199while the defendant Price appeared in the doorway of the trailer with a revolver, and after an exchange of gunfire wounded Wadman. Immediately after the shooting Baca and Moccia ran out of the door of the trailer.

At the trial the defendant Price testified he was sitting at the kitchen table when he heard the shots outside. Price picked up a gun and looked out the door and saw officers with guns pointing at Barrett. Price testified that he fired in defense of Barrett.

DOES THE EVIDENCE SUPPORT A CONVICTION OF PRICE FOR SALE OF HEROIN?

Defendant contends that “viewing the evidence in the light most favorable to the State, the most that can be said is that appellant Price was present at the place where the crime of the sale of heroin was being committed.” We disagree. We think the evidence showed much more. Our statute states:

“§ 13-139. Principals

“All persons concerned in the commission of a crime whether it is a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, * * * are principals in any crime so committed.”

And we have stated:

“Aiding and abetting means simply to assist in the commission of an act, either by active participation in it or in some manner advising or encouraging it. (citations omitted) Aiding and abetting contemplates some positive act in aid of the commission of the offense; an active force physical or moral joined with that of the perpetrator in producing it. The aider or abettor must stand in the same relation to the crime as the criminal, approach it from the same angle, touch it at the same point and possess criminal intent, (citations omitted).” State v. Bearden, 99 Ariz. 1, 3, 405 P.2d 885, 886 (1965).

In the instant case, the sale of narcotics occurred in the residence of the defendant which he shared with the codefendant Barrett, the person' who negotiated the sale.

The defendant was in the kitchen of the trailer when the negotiations for the sale took place and was in the kitchen when the codefendant Barrett came back for the heroin. When they arrested the codefendant Barrett defendant Price came out to protect Barrett and gunfire was exchanged.

The court properly instructed the jury as to aiding and abetting as follows:

“ * * * The term aiding and abetting means simply that the aider or abettor must assist in the commission of an act constituting the offense, either by active participation in it or in some manner advising or encouraging it, and must stand in the same relation to the crime as the criminal, must approach it from the same angle and touch it at the same points and possess a criminal intent.”

We believe there was sufficient evidence from which the jury could find that the defendant Price aided and abetted the co-defendant Barrett in the sale of the heroin and was therefore a principal. §§ 13-138 and 13-139 A.R.S.

DID THE TRIAL COURT ERR IN DENYING THE MOTION IN LIMINE?

Prior to the trial, the defendant made a motion in limine to exclude certain statements by the narcotics agents that Barrett had implicated Price. The court ruled that the prosecutor could not introduce Barrett’s statements that “Kerry [Price] was in the narcotics business with [him]” or that Kerry Price was a bodyguard for Barrett.

At the trial the following transpired during the examination of Agent Land:

“Q Was there anything else involved in your plan that you can recall at this time?
[200]*200“A Well, at. that time we were concerned with the fact that one of the subjects — Rick had stated earlier that there was a bodyguard at the house trailer and he would — [emphasis supplied]
“Mr. Hendricksen: I would like to object. This is hearsay, double hearsay and I move that it be stricken from the record.
“The Court: Yes. The objection will be sustained.”

Later when Agent Wadman testified the following transpired:

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Cite This Page — Counsel Stack

Bluebook (online)
526 P.2d 736, 111 Ariz. 197, 1974 Ariz. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-price-ariz-1974.