State v. Albo

ELLETT, Chief Justice:

The appellant, Albo, was tried jointly with Gayle Boone and both were convicted by a jury. Boone appealed and his conviction was affirmed by this Court on July 11, 1978.¹ See that case for the facts underlying the charge herein.

An undercover agent arranged with Boone to pay $1,000.00 for one ounce of tetrahydrocanibol, the active ingredient in marijuana which is a controlled drug. An arrangement was made for delivery of the substance, but when the agent arrived Boone told him to take a break as “his man” had not yet arrived and later told the agent that his delivery man would be driving a white Continental automobile. After a while the appellant, Albo, did arrive in a white Continental Mark IV. The agent went inside the building where the parties had met and a few minutes later Boone entered and handed the agent a plastic bag containing a brown powder which proved to be phencyclidine, a controlled substance. The agent handed Boone 50 twenty-dollar bills, the numbers of which had been recorded by the police. The two then exited the building, and Boone got in the Mark IV with Albo. The agent had given a signal that a sale had been made and the police immediately appeared and arrested Boone and Albo. At that time they were counting out the fifty bills of which Albo had forty nine and Boone one.

During the trial, a narcotics agent was allowed to testify about a conversation he had with Gayle Boone, in which Boone made a number of statements that incriminated appellant. A tape recording of that conversation was also admitted. When appellant objected to admission of the evidence against him, claiming it was barred as hearsay, the court admonished the jury that at that time the evidence was admissible only against co-defendant Boone.

Subsequently independent evidence was admitted which established against Boone and appellant a prima facie case of conspiracy to distribute a controlled substance. That evidence consisted .of the arrival of appellant at the location of the drug sale, the approach of Boone, empty-handed to appellant’s car, the return to the gym of Gayle Boone, clutching a plastic bag containing a brown substance, later proven to be PCP, and the subsequent entry of Boone into appellant’s car where police interrupted him counting out several hundred dollars to appellant, who put the money in his pocket.

The court instructed the jury as follows: “During the course of this trial the Court has received testimony and evidence of conversations between the defendant Gayle Lee Boone and Kayle Shaw, Jr. aka Mike Days with the admonition from the Court that such testimony is not to be considered as evidence against the co-defendant David Edward Albo. Under the rules of evidence of the State of Utah, such testimony and evidence is hearsay unless there has been evidence presented which proves to your satisfaction, and beyond a reasonable doubt that the declarant, Gayle Lee Boone, and the co-defendant, David Edward Albo, were participating in a plan to commit a crime and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination. If you so find, you may consider any and all statements made by the defendant Boone to Kayle Shaw aka Mike Days as substantive evidence against the defendant Albo.”

The appellant now claims that the court erred. However, he made no objection to the instruction until the jury had returned with their verdict and the time for sentencing had arrived. Anyway the instruction was proper. While it is the province and duty of the judge to determine the admissibility of evidence in the first place, he does this by admitting it in the Case. Here the judge had admitted the evidence and told the jury that if it convinced them beyond a reasonable doubt that Albo and Boone were engaged in a plan to commit a crime, etc. that they could consider the evidence against both defendants.

The legality of the monitoring of the conversation between Boone and the agent and the further assignments of error² were each decided in the appeal of Boone (note 1 above) which is dispositive of the matters here.

The evidence was such that the jury could and should believe that Boone and Albo were working together and the conversation was admissible against Albo although it was not required in order to justify the verdict. It is obvious that the two defendants were engaged in bigtime unlawful dope peddling: that Albo was the wholesaler and Boone the retailer.

This appeal is from a case where a big-time dealer in drugs was caught red-handed in his nefarious dealings, and it would be a disgrace to the court to free him on any claimed immaterial technique.

The judgment is affirmed.

CROCKETT and HALL, JJ., concur. WILKINS, J., concurs in result.

1 . State v. Boone, Utah, 581 P.2d 571 (1978).

2 . Consisting of permitting testimony of other bad acts of the defendant, improper remarks of the prosecutor, refusal to compel an attorney for a witness to divulge confidential communications, and failure to grant a continuance.