State v. Youtsey

570 P.2d 214, 116 Ariz. 527, 1977 Ariz. App. LEXIS 486
CourtCourt of Appeals of Arizona
DecidedAugust 30, 1977
DocketNo. 1 CA-CR 2330
StatusPublished
Cited by1 cases

This text of 570 P.2d 214 (State v. Youtsey) 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. Youtsey, 570 P.2d 214, 116 Ariz. 527, 1977 Ariz. App. LEXIS 486 (Ark. Ct. App. 1977).

Opinion

OPINION

NELSON, Presiding Judge.

On December 23, 1975, the appellant, Ivan Jerry Youtsey (Youtsey) and John Swinehart met with two undercover officers of the Department of Public Safety, agents Oden and Thrasher, at a restaurant in Phoenix, Arizona to consummate a drug transaction involving $10,000 worth of heroin (8 ounces). After confirming that the agents had the money, Swinehart made a telephone call and the four men waited for the heroin to arrive. Approximately 90 minutes later, a vehicle containing the heroin arrived on the scene.

Oden and Swinehart then drove away from the restaurant in Swinehart’s vehicle to allow Oden to inspect the heroin. When the agent was satisfied that the drug was authentic, they returned to the restaurant and joined Youtsey and Thrasher, who had remained in the restaurant. Oden advised Thrasher he was satisfied with the quality of the heroin. All four men then left the restaurant and returned to Swinehart’s car, where Thrasher also checked the package of heroin. Thrasher was satisfied with the “merchandise” and returned to his car, ostensibly to get the money for the exchange.

When Thrasher opened the trunk of his car to get the money, several back-up officers converged on the area and arrested Swinehart, Youtsey and four other men who had transported the heroin to the site.

Youtsey was charged with offering to sell heroin, a felony (A.R.S. §§ 36-1001, 36-1002.02). After a jury trial, Youtsey was found guilty of the charge and sentenced to a term in the Arizona State Prison of not less than five nor more than six years. He has appealed to this Court urging four grounds for reversal of his conviction. None of the questions presented require reversal and the judgment of conviction and sentence thereon are affirmed.

Youtsey urges that the trial court committed fundamental error in failing to instruct the jury regarding the necessity for corroboration of the testimony of Swine-hart, clearly an accomplice in the crime. A.R.S. § 13-136 (Repealed, Laws 1976, Chap. 116, § 1, effective June 24,1976, after the crime in question, but before the trial commenced). There was no request for such an instruction nor any complaint of error at the trial court level. See: State v. Bateman, 113 Ariz. 107, 547 P.2d 6 (1976).

Both Youtsey and the State devoted a considerable portion of their briefs and oral arguments to the issue of whether the repeal of A.R.S. § 13-136, after Youtsey’s conduct was an ex post facto law, when applied to him at trial. U.S.Const. art. 1, § 9; Ariz.Const. art. 2, § 25; Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798); Hart v. State, 40 Ala. 32 (1866). Assuming arguendo that the application of the repeal-er of A.R.S. § 13-136 to persons charged with crimes committed prior to its enactment would be ex post facto (but see: Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204 (1898)), we need not reach that question to decide this case.

Youtsey was not convicted upon the uncorroborated testimony of an accomplice. A.R.S. § 13-136. No party here seriously contends that he was. The State did not even put Swinehart on the witness stand prior to resting its case. The testimony of the arresting officers, if believed, fully involved Youtsey in the offer to sell them 8 ounces of heroin.

[529]*529Youtsey conversed with one or both of the undercover agents for more than one hour. During that time he indicated knowledge of the transaction in every respect. He talked about the percentage of pure heroin in the shipment, its increased selling price in the eastern markets, and his concern about the agents’ full satisfaction with the quality of the merchandise. Youtsey appeared to recognize a man, subsequently identified as one of the transporters of the heroin to the restaurant, when he entered, and thereupon rose from the table where he had been conversing with Agent Thrasher, looked out the window, and returned to the table to advise the agent the transfer would soon be taking place.

The evidence against Youtsey, absent Swinehart’s testimony, is overwhelming. What we really have before us is the procedural aspect of getting our old statute before the jury, i. e., instructions, and not a case involving the conviction of a person solely upon the testimony of an accomplice of a crime committed before the repeal of A.R.S. § 13-136. This opinion does not indicate what position this Court might take on such a fact situation.

State v. Bateman neither directly nor indirectly overruled the decision of our Supreme Court in State v. Brewer, 110 Ariz. 12, 514 P.2d 1008 (1973), wherein Chief Justice Cameron stated:

“Where the evidence is such that there is some doubt as to whether the testimony of an accomplice has been corroborated, then the instruction must be given. However, where the evidence of corroboration is overwhelming and the defendant does not request a corroboration of accomplice instruction, the giving of such an instruction on the courts’ own motion is not mandated by our statute and the failure to give such an instruction should not be considered fundamental error.” 110 Ariz. at 17, 514 P.2d at 1013.

State v. Brewer controls this case, even assuming A.R.S. § 13-136 was still applicable to this trial. This holding was specifically reaffirmed after Bateman by our Supreme Court in State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976).

Next the appellant urges that his cross-examination of officer Thrasher was unduly circumscribed by the trial judge. The essence of the defense was Youtsey’s lack of knowledge of what was going on at the restaurant on the evening in question. Youtsey testified that Swinehart owed a friend of his money and this friend in turn owed Youtsey $3,000. Youtsey claimed Swinehart told him that if he (Youtsey) would meet him (Swinehart) at the restaurant at about 9:00 p. m., he would be in a position to pay some money on the debt. Youtsey claimed no knowledge, either advance or otherwise, of Swinehart’s involvement in a narcotics transaction.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Williams
644 P.2d 889 (Arizona Supreme Court, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
570 P.2d 214, 116 Ariz. 527, 1977 Ariz. App. LEXIS 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-youtsey-arizctapp-1977.