Appeal from Circuit Court, Multnomah County. Richard J. Burke, Judge. No. C-72-02-0460 Cr.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant was found guilty after jury trial of the crime of illegal sale of heroin. ORS 474.020.*fn1 The trial judge suspended imposition of sentence and placed defendant on probation for five years on the condition that he complete the NARA program.
On appeal defendant's sole assignment of error is that the court erred in denying defendant's motion for a new trial.
On the night of November 1, 1971, Officers Wilson and Panit of the Portland Police Bureau were operating as undercover agents in the Williams Avenue area of that city. While driving along this avenue, the officers observed a person waving at them from the sidewalk. Officer Wilson testified that after they had stopped, the individual asked them if they wanted some heroin, and Panit replied that he did. The two waited in their automobile while the person crossed the street, returned and got into the back of the officers' car. Two bags of heroin were then exchanged for $20. The sale took approximately two or three minutes.
Wilson testified that he had seen the defendant previously and that a report written by Panit on the same night as the sale, indicated the subject involved was labeled "John Doe aka Jimmy." The description in the report was as follows: "18-19 years old, five feet four inches tall, 125 pounds, dark complexion, light mustache, black hair, brown leather jacket and black felt hat."
In order to preserve the 'cover' of the officers during a lengthy period of time during which numerous other 'buys' were made, defendant was not arrested until February 16, 1972. Panit testified that on February 16, 1972, he recognized the subject standing by a Chevy II on Williams Avenue. He transmitted a message to Officer Giani who subsequently placed defendant under arrest. Wilson, who was with Panit on both occasions, testified that defendant was again wearing a leather coat and hat. Panit testified that earlier on the date of the arrest the defendant had pulled up beside him in an off-white 1962 Chevy II and asked him if he was looking for anything and that he had it "good." Both Wilson and Panit identified the defendant as the person involved in the heroin sale.
The defendant took the stand and testified that he was not involved in the drug sale on November 1, 1971, and that he had never sold heroin. He further testified that he had never used another name and first heard the name James Bell Storey in court on the day after he was arrested. The defendant testified he weighed about 143 pounds, was five feet five inches tall and was 20 years old; that he had never seen either Officer Wilson or Officer Panit before.
The indictment was originally entitled State of Oregon v. James Bell Storey ...