State v. Shing

Appellee, Arizona, The STATE Appellant. SHING,

William

No. 2291. Division.

May 7, 1973. Nelson,

Gary Atty. Gen., K. Phoenix, hy Dixon, Gen., William Atty. P. Asst. Coury, Gen., Albert M. Atty. Former Asst. appellee. for Lee, Ross Maricopa County P. Public Defender, by Kemper, H. Deputy James Defender, Phoenix, Public appellant. CAMERON, Vice Chief Justice. appeal This is an judgment from a guilty transportation to the crime of marijuana, A.R.S., 36-1002.07 sen- § tence thereon of years from ten to life im- prisonment. are asked We to answer following questions appeal: support Does the evidence conviction transportation of marijuana? imposed 2. Was sentence on defend- ant based an invalid admission allegation of an of a convic- tion? Dove, wagon. Did the reversible and the station The commit defend- Shing

error his in the jury sitting in comments to the ant was found station wagon during closing argument and ? was arrested. The others fled apprehended and were at that time. necessary for determination of The facts open appeal In The door of the was the matter on are as follows. Dehaviland Settle, morning August Mr. and it could seen it of 27 be that contained a Municipal number of manager of the Air- boxes. One of these had bro- Chandler port, plane open packages ken and several smaller observed a land and taxi to lying place. pilot apparent were floor. parking unusual that on the It was The of plane, Aztec, packages shortly that these smaller similar Piper a met were was man, packages containing marijuana. later kilos of thereafter a second identified seeds, stems, Shing, There driving a were and leaves of station wagon. airport marijuana on two men left the the floor of the Dehaviland. The strong The officers a of mar- wagon the station but returned some time noticed odor ijuana coming watching later. The from the aircraft. The De- two men seemed to be pounds the horizon contained some something. the two haviland When being again marijuana. After airport, men left Mr. warned of Settle rights, walked it “Miranda” Miranda v. thought to the Aztec and out marijuana. smelled to U.S. 16 L.Ed.2d 694 This caused him silent, (1966), including the to remain call the office. Sheriff’s questioned concerning the defendant was sej: up Several detectives and arrived presence airstrip identity at the that surveillance. A.P time the two men companion. of his The defendant refused airport had returned to the took off respond questions. to their Aztec, leaving 'wagon the station airport. wagon the station were several Shing At the trial Mr. testified that he plastic containers of smelled like what plane idea had no that the contained mari- aviation fuel. juana. He that he stated was offered $500 (on'é Shing stated detective that said Mr. m., p. At about returned 7:30 the Aztec accompany a $1000) to friend on a busi- and the two were men seen to the .close trip. Shing ness Mr. that claims he was Aztec, apparently so.mething. waiting for only following that instructions and he was thirty later, About minutes there was put supposed to fuel into Dehaviland. the. sound of another aircraft. The Aztec took identity refused He to disclose the of this wagon began off and the 'station to leave claiming friend at the trial his life would lights with its off. detectives ob- endangered be if he did. wagon served the of the driver station later him as At identified the defendant. THE EVIDENCE SUPPORT DOES time, airplane very that another made a CONVICTION FOR TRANSPOR- pass low over the field. The detectives TATION OF MARIJUANA? planes by navigational followed two Shing violating noise Mr. convicted of lights of the Aztec and the § A.R.S., provides part: plane. planes reached the which other 36-1002.07 When * * * Phoenix, person transports they “Every ap- Mountain area of South marijuana punished by imprison- shall peared to descend. * * prison in the state proceeded Stellar The detectives an inno- planes that he was City Airport, were not Defendant contends but two bystander, knowledge Next, that he they proceeded to cent had no Good- there. transaction, illegality strip, been of the year auxiliary had once which no he knew aban- there was evidence the Air Force but was now used Aztec, marijuana that he plane knew they an- contained found the There doned. marijuana, in fact was passenger plane, ten Dehaviland .substance '1 n * -commission, prin aged its are' deny motion error to and thus it was '' cipals in crime' so committed.” § a directed verdict. ' A'.RiS. 13-140 13-Í39'A.R.S. Sée also‘§ State, relies on Defendant Carroll said: which (1962) P.2d 649 THE IMPOSED.ON SENTENCE WAS a crime presence at the scene of “Mere BASED. UPON DEFENDANT .AN guilt. In cas- is insufficient to establish AN AL- ADMISSION'OF INVALID in a found es the narcotic was where AOF PRIOR CONVIC- LEGATION ' place sus- public and conviction was nn . TION? tained, factor con- there was involved a that his sen- The defendant next claims narcotic, in- necting the accused upon an invalid admission tence was based dependent presence at or near the of his allegation prior of a He an of conviction. drug found location where the was argues that since the admission constitu- Ariz. (Footnote omitted) 90 face, necessary tionally its it is void- on at 368 P.2d at 650. however, not, vacate his sentence. We do Carroll, supra, dealing we were validity prior need to consider the of the public place found in a ac with narcotics Although there was an adden- conviction. many people than defend cessible to . alleged a dum to information which case, a de ant. In the instant we have prior pursuant 13-1650 A. conviction § salary paid high fendant rent who was robbery in the R.S. State of California car, night in the dark drive of plea entry the minute of while airstrip put gas abandoned into another showing plea guilty a. of not to the crime airplane plane easily when that could have charged as also shows “defendant admits refueled at several other convenient loca conviction,” allegation prior judg- of only tions in the area. Defendant was the guilt charged ment of was for the as crime person present when arrested at the scene not, only and the record does reflect a pounds marijuana. with some 2600 of judgment guilt of .convic- the. to. Testimony plane indicated that was tion. marijuana loaded with boxes of in smaller packages, was ample mon principal kins on transporting marijuana. juana Arizona, however, infer that defendant inside the door activity common law would be to be classified as a The best defendant damp. law distinctions between evidence to had a was in Criminal in the second These circumstances strong progress Law, support has abolished the com- marijuana knew that odor plane, 2d ed. at could and that there was degree. the conviction of that the mari it hope some was visible degrees because page See strongly illegal Per- it the amount' of posing1 marijuana DID THE PROSECUTOR COMMIT cannot find in the State v. (cid:127) ^[2] ING CLOSING ARGUMENT? REVERSIBLE 467 P.2d 749 COMMENTS TO THE (1971); Since sentence statutory Smith, without a State v. marijuana abuse -of discretion- in im (1970). sentence particularly limits for- ERROR IN' "HIS prior conviction, Carpenter, imposed involved. See JURY transporting considering 105 Ariz. is with DUR- we principals and accessories before the fact. At the cross-examination-by trial on de- (cid:127) 13-137, seq., et A.R.S. And further: § attorney, fendant’s one of the sheriff’s deputies following asked the afier persons “All in the concerned commis n stating expláined that defendant had felony sion a crime it is a whether n read rights to him his from a “standard

misdemeanor, they directly and whether n n rights card”: offense, constituting commit the act commission, or, not “I asked him if or aid and abet in its he wanted to talk 'us. tó n ' ’ n said,‘Yea.’ being present, and encour He have advised naturally. “I told who I was I asked asserts Defendant for the first time on many people him origi- appeal how were comments there — nally were there. He didn’t want to dis- punish defendant’s silence after arrest cuss that. I asked if he exercising him wanted to him for to remain si said, téll the itwho was. He ‘No.’ Lat- lent. Defendant relies on Griffin v. Cali é'r, fornia, "Detective Lines returned with what 14 L. we'thought suspect, was a and I asked cases, Ed.2d (1965), and two Arizona Shing Mr! per- Simoneau, he look at this would State v. ” said, son and He Villalobos, (1965) him. ‘No.’ and State v. Ariz.App. Later, P.2d the stand and took testified in own behalf. On cross-ex- areWe not here concerned with amination he was asked: upon testimony comment defendant’s person “Q you This who hired to make trial. the Since defendant chose to take n this business trip testify, with him has testimony the stand and includ name, does he ing not ? his refusal on the stand to name the person certainly who hired him was .“A Yes. proper by prose for comment the anyone You have never told who “0 n cutor in jury. his remarks to the before, person you? "this have are, however, We concerned with the ,.‘.‘A No. prosecutor they pertain comments the "L* ‘ n n “Q ’ '"'’’to person this be hiréd Well, Phoenix, paid ^[*] morning Mr. for 10 this ^[*] Shing, you it. Can person years, you ^[*] you to make a were have testified you ^[*] knew this you ,tell going ^[*] were trip to have stated: and Miranda na, supra, ing to actions “We to name * * * in remaining person warnings, defendant do not people shown silent Miranda v. Arizo- approve after his to him. and in refus- him the intro- arrest or to We person si- this duction evidence of an accused’s ? reply is in questions lence in to when he said, why "A I I didn’t Like reason custody under circumstances or mention the name because I am right re- where it is his to constitutional depart- afraid because the Sheriff’s .(cid:127) incriminating himself under frain from : (cid:127) n .mettt advised me earlier me—told the Fifth Amendment to Constitution ' n my dangerous life in and at the that' (cid:127)of the State v. Simo- United States.” got time I Sanie- after awhile to neau, supra, P.2d at 98 Ariz. at . thinking, my only not life would be my family dangerous .ill life but The federal courts stated: have dangerous, would be too.” “ * * * during an after the arrest and , closing argument In his respondent examination, official while commented: knowledge that custody, it is common Only right say nothing. he un- has a to significant thing the most “Perhaps, * can there peculiar der circumstances Shing’s . Mr. behavior about n Washis silence. speak. be then to duty seem to opportunity He an had circumstances, to draw a Lacking such explain presence airstrip. ".'to n derogatory mere silence inference from opportunity an do He had He didn’t so. compel testify; respondent !' is to * * might 'identify someone bise who n /'might not States, McCarthy United v. The officers involved. 1928); (6th United know, 25 F.2d Cir. but Mr. didn’t didn’t know. He Pearson, (6th States 344 F.2d op- v. of that ..Shing avail himself .did not Cockrell, 1965). People See also Cir. portunity.” Court, 659, Cal.Rptr. 788, in the result this Since I concur 63 Cal.2d concurring only shall deal with opinion disagree upon the area I with the which may, hold that a defendant aft To majority in.reaching that result. being to remain si er warned of The has concluded that lent, against used him have silence prosecutor’s closing argument comment in nullify warning Mi required would jury to the the defendant’s silence randa, supra, warning have would after “fundamental error which arrest was defendant to be amended to inform the by the failure of de- was not waived says only he be used that not what object . It is with fendant . .” . say him, against he will but what doesn’t disagree. that I statement against him. have stated: be used We also accused a case in which the “Whether proper place this issue order conversation, but re does initiate the necessary perspective it is how review lapses sponds questions, to several then prosecutor’s basis clos factual embarrassing into silence when asked ing argument into came evidence. question category is falls into the same first defendant’s refusal to reference case much In such a it more doubtful. questions law en answer asked of him generally would not be as ‘natural’ that during cross ex forcement officers came embarrassing respond the accused by counsel. If it amination the defendant’s question. likely It is more that he much the de inquire is into the area of error to right simply asserting remain si rights to re Amendment fendant’s Fifth holding lent. we that an Thus limit our silent, by the main this error was created by admission can silence admissible be repeatedly held This has defendant. the evidence to facts of the case before error in that defendant not create O’Dell, us. State v. 108 Ariz. rely creat the trial court and then on 53, 1160, 56, (1972). 492 P.2d 1163 Arriola, appeal. ed 99 error on State v. 332, v. State (1965); And Ariz. 409 P.2d 37 we believe that it was fundamental er- 348, Farmer, (1965); by Ariz. 400 P.2d 580 ror which was failure 97 not waived the Rascon, 336, P.2d 330 Ariz. 400 object prosecu- the defendant to State 97 when the v. 290, Paramo, 376 (1965); v. 92 Ariz. tor commented State defendant’s silence (1962). P.2d matter after 554 arrest. erroneously being defendant’s silence not case, however, Under the facts in this granted prosecutor jury, before the the we believe that said comments were harm jury discussing the wide latitude beyond Chapman less a reasonable doubt. supplied by evidence the facts the 18, California, 824, v. 386 87 U.S. 17 S.Ct. State be drawn therefrom. inferences to (1967); Harrington L.Ed.2d v. Cali 705 434, Gonzales, 466 P.2d 388 v. 105 Ariz. fornia, 1726, 250, 23 L. 153, Ariz.App. ; Adams, 1 (1970) v. State posi (1969). Considering Ed.2d 284 the upon the man 400 Based P.2d 360 tion in which defendant was found —two in the trial ner issue arose in which this airplanes, pounds one with 2600 of mari error, it be court, this hold I would juana, fuel, the the aviation abandoned air error, is not reviewable. strip any surely such comment is most — beyond harmless a reasonable doubt. however, is, fundamen- a more There Judgment affirmed. myself existing tal between difference than the majority this issue the HOLOHAN, J., concurs. this procedural mere manner which JACOBSON, 1, Judge Division Chief This fundamental error arose. claimed Appeals (specially concurring) Court of : defendant difference arises where privilege Fifth Amendment waives his I that the conviction concur defendant’s taking by against self-incrimination in this must be affirmed. sentence case 366 1006, behalf, denied, 568, 389 in his and is subse- U.S. 88 19 L.

stand own S.Ct. concerning (1967) Ed.2d 604 case quently (but his fail- even this does cross-examined not raise the arresting issue one of fundamental to make officers ure known story error), by or the explanation given “admission silence” was he has from attempted prosecu to be introduced subsequent the stand and comment See, silence, tor in case jury concerning in chief. Griffin v. this constitutes California, all, 380 85 14 error at let alone U.S. fundamental error. O’Dell, L.Ed.2d 106 (1965); State v. I first note has held that this Court 492 P.2d 1160 (1972); State testifying cross examination of the defend- Simoneau, ; (1965) 98 Ariz. concerning police ant whether he related to Villalobos, Ariz.App. State v. story officers same he from the told (1967); McCarthy P.2d 723 v. United Altman, improper. stand is not State v. States, (6th 1928); 25 F.2d Cir. Unit (1971). Again, 107 Ariz. P.2d Pearson, ed (6th States v. 344 F.2d I would hold that if a defendant can 1965). Cir. concerning examined his constitutional silent, proper to remain this is a sub- In the three Arizona cases where ject jury closing comment ar- “admission silence” after the occurred gument. stand, defendant took the Court has juncture, however, At consistently held that “a defendant opinion would draw distinction between takes the stand waives his Fifth Amend commenting by on defend- privilege self-incrimination, against testimony ant’s being prop- on the stand as being privilege against view that the er prosecu- comment and comments designed self-incrimination to avoid they pertain tor “as to the actions of the arising the evils from the star-chamber.” defendant after his arrest and Miranda Peterson, State v. warnings remaining in [citations omitted] (1971); Belcher, 1158 v. State silent refusing people and to name the with 290, see, (1972). 590 State Also identify person him or to the shown to Alterman, supra. v. him” improper. which is I am unable to Objectively, pointed it should be out that draw such a fine In distinction. both in- in all three of cases held these the Court the remaining stances conduct consists of error, that if such admission were the er after arrest —on the hand silent one refus- ror prejudicial was not and stated in as ing identify suspects explain his Peterson, supra, Belcher, supra, in the presence at the scene and on the other is, line questioning, of that admission the identify refusing employer hand his approach silence “does more no than for all we know have been the indi- point potential the danger prejudice of in the vidual defendant was asked to volving defendant’s Fifth Amendment at the scene. rights,” indicating at least that there is may, attempt Be that as it to make which, crossed, line if in prej could result place proper distinction serves to in statement, however, udicial error. This in focus the reason both cross-examination of my opinion, was made without the com the defendant testimony of the law plete analysis of the Fifth Amendment proper enforcement officer are comment right impeachment and its use an tool fact that the de- —the when the takes I am defendant the stand. right fendant Fifth waives the Amendment Greer, also aware of the case of v. State by taking to remain silent stand in his Ariz.App. 162, (1972), 17 496 P.2d 152 own behalf. Ap where Division of of Two the Court peals held that of the cross-examination singular This fact in all absent concerning at defendant silence his majority, except cases cited the case arrest, But time of was reversible error. Cockrell, 659, People of v. 63 Cal.2d 47 788, Cal.Rptr. dissenting opinion Judge see of Haire cert. (1965), 165-167, The Court went on to state: Ariz.App. at 496 P. case. 17 that 2d at 155-157. however, not, solve the “This does particular cir- question understanding whether in the my opinion, a correct

In cumstances of case cross-exami- begin a review problem must of this be-' nation been excluded Supreme de should have Court States of three United probative the is- States, value on cause its cisions, 271 U.S. v. Raffel United [of] credibility. sue 494, 566, (1926); L.Ed. 1054 [defendant’s] 46 S.Ct. of 391, Id., supra. States, (Emphasis added.) .” U.S. United Grunewald v. (1957), 1 L.Ed.2d 77 S.Ct. A refused to base of the Court York, 91 S.Ct. 401 U.S. Harris v. New issue reversal the constitutional (1971). L.Ed.2d 1 privileges of “the value constitutional destroyed pe persons largely at can his Raffel, supra, the defendant In Concurring relying nalized for them.” Fifth Amendment first trial exercised his opinion in his own of Mr. Black in right the stand Grunewald and did not take Justice States, deny testimony at introduced United 353 U.S. behalf words, appeal and re- 1 L.Ed.2d at In other against subsequent A him. materiality ev the sec- of of trial. At issue becomes one versal resulted a new testify infringement than con and de- idence rather ond defendant did trial the rights. At this stitutional incriminating nied evidence. exam- cross second trial the defendant was Harris, supra, In Su- United States his Amend- ined Fifth as to exercise preme prior its decision Court reinforced testify in behalf not to his own Grünewald, probative supra, credibility attempt impugn the in an test, value of the cross-examination is the The United denial second trial. infringement not constitutional upheld this cross-ex- States Harris, supra, rights. amination, a criminal holding that when gave police statements under circum- takes stand he waives defendant conforming stances with the dictates of completely privilege and becomes Miranda v. impeaching his credibili- cross-examination 694, 10 16 L.Ed.2d A.L.R.3d ty just like The witness. Raffel court stated: and made defendant took stand partial; having waiver is not “His statements non- inconsistent with his immunity, he once cast aside the cloak of conforming statements. The may will, it at whenever not resume impeach was allowed may be inconvenient cross-examination uphold- In use of statements. 497, 46 embarrassing.” at ing practice against a at- constitutional 568, at at S.Ct. 70 L.Ed. 1058. tack, held that: the Court Grunewald, supra, the States United “It does not follow from Miranda Supreme ruling in its Court reviewed against an accused Raf evidence inadmissible it,

fel, stat supra, and refused overrule prosecution’s case in chief ing: purposes, provided all barred for course that the trustworthiness of words, other we assume “In legal evidence standards.” satisfies in this under Raffel defendant] [the 224, 91 (Emphasis added.) 401 at U.S. case was to cross-examination 4. S.Ct. at 28 L.Ed. at any credibility impeaching like just fur- The United States witness, that his Amend- and Fifth ther stated: could plea grand jury before the stand, immunity voluntarily carry “Having taken over form of . petitioner obligation to voluntarily was when he took the stand under speak truthfully accurately, at trial.” 353 at U.S. prosecution than utilize 1 at here did no more L.Ed.2d 368 truth-testing

the traditional devices of the

adversary process.” 401 at U.S. 91 645-646, at 28 at 4. L.Ed.2d Court,

In the case before the I need not

reach determination as to whether the explain presence

defendant’s refusal supposed the scene or co probative

hort was of sufficient value to

put question credibility, the defendant’s objection

for no was made this testimo

ny objection prosecu was nor made to the argument point

tor’s jury. thing decide, however,

One I would is that el, supra, under the rationale of Gru Raff

newald, supra, Harris, supra, this er

ror, any, evidentiary error and not

fundamental error as con (constitutional)

tended therefore See, object.

waived failure State v.

Coward, P.2d ; Mohr, (1972) State v. Gregge,

P.2d 857 (1970); State v.

Ariz.App. P.2d join majority’s

I affirmance of

the defendant’s conviction and sentence expressed.

with the reservations herein

The INDUSTRIAL DEVELOPMENT AUTHORITY OF the COUNTY PINAL, Petitioner, OF Gary NELSON, Attorney

The Honorable K. General for the State of Respondent.

No. 11059. In Bane.

7,May 1973.

Rehearing Denied June

Case Details

Case Name: State v. Shing

Court Name: Arizona Supreme Court

Date Published: May 7, 1973

Citation: 509 P.2d 698

Docket Number: 2291

Court Abbreviation: Ariz.