State v. Sumter

536 P.2d 252, 24 Ariz. App. 131, 1975 Ariz. App. LEXIS 659
CourtCourt of Appeals of Arizona
DecidedJune 12, 1975
DocketNo. 1 CA-CR 817
StatusPublished
Cited by5 cases

This text of 536 P.2d 252 (State v. Sumter) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sumter, 536 P.2d 252, 24 Ariz. App. 131, 1975 Ariz. App. LEXIS 659 (Ark. Ct. App. 1975).

Opinion

OPINION

DONOFRIO, Judge.

On July 9, 1974 in the Superior Court of Yuma County the appellant, Baron Edward Sumter, was convicted by a jury of the crimes of possession of marijuana, possession of marijuana for sale, and transportation of marijuana. The trial judge vacated all but the possession of marijuana for sale count, and sentenced appellant on that [133]*133one count to not less than two nor more than three years in the Arizona State Prison. He now appeals from the judgment and sentence.

The appellant raises four questions for review. The first concerns the denial of the trial court to grant a continuance when appellant’s co-defendant, Benjamin Reyes, failed to appear on the day of trial. The court severed the two cases and appellant was then tried separately. Reyes was arrested in conjunction with the activities with which appellant was also charged, and both men were released on bond pending trial. Reyes is a Mexican national who apparently has fled the jurisdiction. There is no assurance that Reyes will ever be apprehended. His testimony is not known, and it is only speculation as to what he would testify concerning the events surrounding appellant’s arrest and trial. It is obvious that the State had nothing to do with Reyes’ disappearance, and it is to be noted that the trial court has revoked Reyes’ bond and issued a bench warrant for his arrest. Appellant has made no showing of abuse of discretion by the trial court, nor any prejudice to the appellant, and we find no error. State v. Benge, 110 Ariz. 473, 520 P.2d 843 (1974).

The second question raised by appellant concerns the refusal of the trial court to require the prosecutor to elect between the two counts before submitting them to the jury. Appellant was charged with two counts: 1) possession of marijuana for sale, A.R.S. § 36-1002.06; and 2) transportation of marijuana, A.R.S. § 36-1002.07. The court also instructed the jury on the lesser included offense of simple possession of marijuana. The jury returned convictions on all three crimes.

It is true that A.R.S. § 13-1641 prevents the imposition of punishment for both charges as interpreted by State v. Benge, supra, but we think that defect was cured in the instant case, as in Benge, when the trial court sentenced appellant only on the one count of possession of marijuana for sale and vacated the other count at the sentencing. See State v. Benge, supra. The factual situation in Benge is close to the instant case, in that both cases involved the submission to the jury of one count of possession of marijuana for sale and one count of transportation of marijuana. Therefore, under the rule of the Benge case, there was no error in submitting both counts to the jury in the instant case, and sentencing appellant on only the one count — possession of marijuana for sale.

A third question raised on appeal concerns whether entrapment as a matter of law has been established. Appellant asserts a form of entrapment defense based on “the intolerable degree of governmental participation in the criminal enterprise.” The local police officers in Yuma have set up surveillance on appellant Sumter based on a tip from an informant that Sumter was engaged in illegal narcotics dealings. They observed Reyes in Sumter’s car during the course of their surveillance, and later decided to follow Reyes when the two parted company. Subsequently, the officers stopped Reyes, searched his car, and found three large bags full of marijuana bricks. The officers then decided to allow Reyes to continue with his apparent plan to deliver the marijuana to Sumter. Reyes did so, and the arrest of Sumter followed. The details of the stopping of the Reyes vehicle and its search will be noted later in this opinion.

Appellant asserts that the officers had a duty to seize the marijuana when they discovered it in Reyes’ car, and that allowing it to be delivered to Sumter amounted to entrapment as a matter of law. We disagree. It is appellant’s further claim that the marijuana became the State’s property at the moment it was found in Reyes’ car and that Reyes then became an agent of the police. Our interpretation of the record leads us to conclude that the police merely allowed the marijuana to be delivered in accordance with a [134]*134prearranged plan between Reyes and Sumter, and the police simply continued to monitor the crime until all participants could be identified. We think appellant was predisposed to commit the crime and the officer did not initiate the action of Reyes. It is a general rule that for entrapment to be established as a matter of law it is necessary for the government’s evidence to show the criminal design for the crime charged originated with the government officials and was implanted in the mind of the innocent person so that he was induced to commit a crime he was not otherwise predisposed to commit. Sears v. United States, 343 F.2d 139 (5th Cir. 1965); Sendejas v. United States, 428 F.2d 1040 (9th Cir. 1970); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L. Ed.2d 366 (1973). We think the actions of the police in the instant case are reasonable in light of the surrounding circumstances, and do not amount to entrapment as a matter of law.

The final question raised on appeal concerns the trial court’s failure to suppress the marijuana as evidence of an alleged illegal search of Reyes’ car. Since we hold that the search of Reyes’ car was legal, we do not reach the question whether Sumter had standing to object to that search. We will consider the search of Reyes’ car in two stages: 1) justification for the initial stopping of Reyes’ car, and 2) probable cause for the resultant search of the trunk of Reyes’ car. The Yuma area narcotics task force had received a tip from a confidential informant on April 1, 1974 that Sumter (a white male) was engaging in illegal narcotics dealings. On that date Sumter was staying at a motel in Yuma. He was driving a white car with California license plates. The officers set up surveillance of Sumter that day, but nothing incriminating resulted and Sumter returned to his home state of California. The informant’s previous tips to the police had resulted in two arrests, one for illegal narcotics violation, and another for transporting illegal aliens. The informant had been paid by the police on other occasions for his information. When Sumter returned to Yuma on April 18, 1974, the informant again notified police who observed Sumter’s actions again. This time they saw Reyes (a Mexican male) whom they had not known before, in Sumter’s car with him as the two traveled around the Yuma area. The Sumter car, with Reyes in it, stopped at several locations in Yuma before going to McDonald’s Drive-In where Reyes exited the Sumter car and left, alone, in his own car with Arizona license plates. Reyes was then followed by the police officers as he drove out of town and turned off of the main highway onto a gravel and dirt canal service road into the desert area.

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Bluebook (online)
536 P.2d 252, 24 Ariz. App. 131, 1975 Ariz. App. LEXIS 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sumter-arizctapp-1975.