author: HARRIS, Presiding Judge.

text:
    Freddie Earl REED v. STATE.
    1 Div. 69.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of the offense of possessing marijuana and the jury assessed a fine against him in the amount of $7,500.00. As additional punishment the trial court sentenced him to fifteen years imprisonment in the penitentiary. Appellant was represented by counsel of his choice and at arraignment he waived reading the indictment and pleaded not guilty.

Appellant did not testify in his behalf but rested after his cross-examination of the State’s witnesses and his motion to exclude the State’s evidence for failure to make out a prima facie case. He filed a motion for a new trial raising the sufficiency of the evidence and claimed the trial court erred in refusing several written charges.

On January 28, 1978, Officer Sammie Brown, Jr., of the Mobile Police Department went before one of the District Court judges and made an affidavit in support of a search warrant to search the residence of appellant located at 3628 Minmarsue Drive in Prichard, Alabama. The affidavit reads as follows:

“SEARCH AFFIDAVIT
District Court of Alabama. Mobile County
Affidavit: State of Alabama, County of Mobile: Before the undersigned personally appeared Officer Sammie Brown, Jr. who requested a search warrant and in support thereof made oath as follows: “1. The ()PERSON (X)PLACE to be searched is in Mobile County and is described as:
3628 Minmarsue, Prichard, Alabama, residence of two black males named Freddie Earl Reed and Freddie White
“2, The PROPERTY to be searched for and seized, if found, is specifically described as:
Marijuana
“3. The GROUNDS for search are that said property
() was stolen or embezzled.
(X) was a means of committing the felony of:
Possession of Marijuana
() will be used to commit the offense of:
“4. The FACTS establishing probable cause for search are:
“I am Officer Sammie Brown, Jr. of the Mobile Police Department, Mobile, Alabama. I am presently assigned to the Narcotics Section. On Friday, January 27, 1978, I received the following information from a reliable informant who has given me reliable information within the past six months. This information has led to the arrest and conviction of two drug violators in two cases in the District Court of Mobile, Alabama. The informant stated that within the past twenty-four hours, he was inside the residence of two black males named Freddie Earl Reed and Freddie White. While in the residence at that time, the informant observed Freddie Earl Reed and Freddie White, cutting up green plant material and putting it into small plastic sandwich bags. The informant also observed a large white plastic bag with green plant material uncut in the kitchen. This substance was represented by Freddie Earl Reed and Freddie White to be Marijuana. I know that Marijuana is commonly packaged in this manner and has this appearance. I have frequently come into contact with persons using and handling this drug in my duties as a narcotics officer.
/s/ Sammie Brown. Jr.
Affiant
“Subscribed and sworn to before me this 28th day of January, 1978, at 8:50 A.M.
/s/ Paul W. Brunson
()Judge, District Court of
Alabama, Mobile County
()Municipal Judge, City of”

Officer Brown, along with several other officers of the Mobile Police Department, a Deputy Sheriff of Mobile County, and a police officer of Prichard, went to the address set forth in the search warrant and knocked on the door. Appellant answered the door knock and the officers told him they had a search warrant. Appellant exclaimed, “No” and slammed the door, locking it. One of the officers opened the burglar bar door and Officer Brown kicked the door open. The officers entered the house and found appellant and a small child. Appellant was in the den area of the house and was in the process of drawing the curtains in the room.

The search got under way and the officers found approximately 24.9 pounds of marijuana which was in several bags. According to the testimony of Ms. Alilee Pill-man, the Toxicologist for the Mobile Police Department, whose qualifications were not questioned, “20 plastic bags of plant material and 14 one pound bags of plant material and two pounds of loose green plant material, a white paper bag with some more plant material, a brown paper bag and two bags in brown paper bags, three cigarette rollers, an ash tray containing plant material, four large garbage bags with residue, some scales, and some white powder were turned over to her by Police Officer Roderic Steade.” She tested the plant material and found it to be marijuana. She also tested the white substance and found it was 0.2219 grams of phencyclidine. The testimony of Ms. Pillman was received without objection.

During the search the officers found three handguns and between seven and eight thousand dollars in currency. The money was subsequently returned to appellant.

When the officers found the white powder and brought it to the evidence officer in the den where appellant was sitting appellant spoke up and said “that he knew about the weed but he didn’t know the white powder was in his house.” This statement was made by appellant without any questions being asked him by the officers.

When the searching officers found the first bag of green plant material Officer Brown gave appellant the Miranda rights and warnings by reading these rights from a card he had in his possession. Brown further testified that he could not recall appellant’s response to the Miranda rights but whatever his response was it was not made in a negative sense.

Appellant filed a pre-trial motion to suppress the evidence obtained during the search. The motion hearing was held on the day of the trial and was overruled and denied.

The affidavit in support of the search warrant in this case was based on hearsay information provided by and sworn to by Officer Sammie Brown, Jr., of the Mobile Police Department. In the affidavit Officer Brown swore that the informer had provided reliable information on two occasions in the past six months which led to the arrest and conviction of two drug offenders. He also stated in the affidavit that the informer came by this information as a result of a visit to appellant's residence within the past twenty-four hours.

Although an affidavit may be based on hearsay information and need not reflect the direct personal observation of the affi-ant, the issuing authority of the search warrant must be informed of some of the underlying circumstances from which the informant concluded that the drugs were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The requirements set forth in Aguilar v. Texas, supra, create a two “prong” test that must be met before an affidavit based on hearsay information can sufficiently support a search warrant.

One of the “prongs” of the “Aguilar" test requires that the issuing authority of the search warrant must be informed of the underlying circumstances from which the affiant concluded that the informant is a credible person and his information is reliable. McCurley v. State, 390 So.2d 15 (Ala.Cr.App.1980) reversed on other grounds, 390 So.2d 25 (Ala.1980). In the case at bar Officer Brown swore that the informant was reliable and had provided reliable information to the police on two previous occasions. In fact Officer Brown stated in the affidavit that “I received the following information from a reliable informant who has given me reliable information within the past six months.” This is almost identical to the statement, “I have received information from a person whose record of reliability for correctness has been good,” which was found to be sufficient to support this “prong” of the “Aguilad’ test by the Alabama Supreme Court in Neugent v. State, 340 So.2d 52 (Ala.1976) cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977). The statement is also similar to the one approved by the Alabama Court of Criminal Appeals in McCurley v. State, 390 So.2d 15 (Ala.Cr.App.1980) reversed on other grounds, 390 So.2d 25 (Ala.1980). The trial court had ample support for its finding that Officer Brown provided sufficient information for the issuing authority of the search warrant to conclude that the informant was credible and his information reliable.

The other “prong” of the test set forth by Aguilar v. Texas, supra, is that the issuing authority of the search warrant be informed of the underlying circumstances from which the informant concluded that the items to be seized were where he claimed they were. McCurley v. State, supra. Officer Brown stated in his affidavit that the informant had knowledge that the marijuana was at the residence as a result of a visit to that residence within the past twenty-four hours. He also indicated that the packaging and cutting of the material thought to be marijuana was done in a manner and appearance common to the processing and packaging of marijuana. This provides sufficient information for the issuing authority of the search warrant to conclude that there was probable cause that the marijuana existed in the place where the informant stated it was present during his visit in appellant’s home.

Appellant asserts that Officer Brown had no personal knowledge that the informant observed the marijuana in the residence while on a visit. He further asserts that the informant could have been a burglar for all Officer Brown knew. Officer Brown made a determination that the informant was credible or the information was reliable. The issuing authority of the search warrant examined the underlying circumstances supporting Officer Brown’s determination that the informant was credible and the information reliable. Prior proven reliability of an informant is an indication of the present reliability of his information as well as his credibility. Consalvo v. State, Ala.Cr.App., 372 So.2d 44.

In addition to the suggestion that the informant could have been a burglar, appellant also suggests that the informant could have placed the marijuana inside the residence. Officer Brown testified at the hearing that he had no knowledge whether the informant could have been a burglar or could have placed the marijuana in the residence himself because he did not observe him enter the residence on a visit or question him as to whether he burglarized the residence or placed the marijuana there himself. No evidence was produced to indicate that this was the case, but was only speculation on the part of the defense. Appellant moved the trial court to allow the defense to examine the informer to ascertain the manner he obtained entry into the residence of appellant.

“[Wjhere a defendant makes a substantial showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” (Emphasis added.) Franks v. Delaware, 438 U.S. 154, 155, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).

In the case at bar the defendant failed to make a substantial showing that a false statement was knowingly and intentionally made or was made with reckless disregard for the truth. The informer who was found to be reliable and credible by Officer Brown and the issuing authority of the search warrant told Officer Brown that he observed the marijuana in the residence on a visit. Officer Brown relying on the informant’s statement as the truth had no reason to question him on such matters as whether he burglarized the residence or planted the marijuana there. Again, no evidence was produced to indicate that the informant had done so.

Appellant relies on DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406, cert. denied 295 Ala. 399, 323 So.2d 411 (1975). In that case it was held that in a prosecution for possession of marijuana the introduction into evidence of five packets of heroin found in a search was so prejudicial and irrelevant that it required reversal. The Court of Criminal Appeals in that case found the case of Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975) not to be controlling.

In the case of Brantley v. State, supra, the Alabama Supreme Court held that other controlled substances were admissible in a prosecution for possession of marijuana to show the “complete story” and to shed light on the issue of whether the defendant possessed the marijuana with an intent other than personal use.

In the case at bar appellant contends that DeGruy v. State, supra, not Brantley v. State, supra, should be controlling. We do not agree. The Court of Criminal Appeals has applied Brantley subsequent to the decision in DeGruy v. State, supra, in cases involving a multiplicity of drugs in evidence, for the proposition that these drugs are admissible as part of the res gestae and one transaction or occurrence. Flippo v. State, Ala.Cr.App., 359 So.2d 1184. See Napier v. State, Ala.Cr.App., 338 So.2d 463 (1976); Smith v. State, Ala.Cr.App., 351 So.2d 668, cert. denied 351 So.2d 675 (Ala.1977).

In DeGruy v. State, supra, the appellant was visiting a residence when shortly after his arrival a search took place of that residence by the police. Appellant only had possession of a small amount of marijuana. Five packages of heroin were found in the search of the residence which was not the residence of appellant. The Alabama Court of Criminal Appeals in that case held that the introduction into evidence of the heroin was so highly prejudicial and irrelevant that it required reversal of the conviction of possession of marijuana for other than personal use.

In the case at bar the house was laden with marijuana amounting to over 24 pounds. It was packaged in various shapes and sizes and was accompanied by two sets of scales and three cigarette rollers. The introduction of the testimony of the phen-cyclidine was admissible as part of the res gestae and part of one occurrence. Flippo v. State, Ala.Cr.App., 359 So.2d 1184.

Appellant also contends that it was error to allow testimony that three weapons and seventy-five hundred dollars ($7,500.00) in cash were found in the search. Appellant’s counsel objected to the original question concerning other objects besides marijuana that were found in the search and was overruled. The basis of the objection was that “[t]hat has no bearing in this case.” When at a later time Officer Brown was asked what else was found there was no objection and Officer Brown indicated in addition to the phencyclidine there were several handguns and seven or eight thousand dollars. Once a specific objection has been made to a question and the trial court is made aware of the grounds of the objection, it is not necessary to repeat that specific objection each time an additional question is propounded to elicit the same testimony. Small v. State, 348 So.2d 507 (Ala.1977); Carroll v. State, Ala.Cr.App., 370 So.2d 749, cert. denied, 370 So.2d 761 (Ala.1979).

In this case, the guns and money like the phencyclidine were relevant to the case as part of the res gestae to show the “complete story” and these items had probative value to establish that the possession of marijuana was not for personal use only. Flippo v. State, supra.

As stated in Laffitte v. State, Ala.Cr.App., 370 So.2d 1108, cert. denied, 370 So.2d 1111 (Ala.1979):

“The rule is that ‘when the circumstances indicate that, according to the common probabilities of experience, the confession was not improperly induced, then no formal predicate is required.’ C. Gamble, McElroy’s Alabama Evidence, Section 200-02(4)(a) (3rd ed. 1977). ‘A confessory statement, which is a spontaneous exclamation, is admissible without proof that it was not obtained by improper inducements.’ McElroy Section 200.02(4)(d). The statements were volunteered by the appellant and were not made in response to any interrogation. Thus the Miranda warnings were not required. Roberts v. State, 349 So.2d 89, 94, (Ala.Cr.App.), cert. denied, 349 So.2d 94 ([Ala.] 1977).” Id. at 1110.

Even if the “Miranda” warnings were not understood by appellant, the spontaneous utterance with reference to the white powder was admissible into evidence.

At the close of the State’s case appellant made a motion to exclude which was denied. He now appeals from that ruling. The State through the testimony of Ms. Alilee Pillman, the State Toxicologist, identified the green leafy matter, obtained in the search of appellant’s residence, as marijuana. In doing so the State made out a prima facie case without the introduction of the actual substance into evidence. Bickerstaff v. State, Ala.Cr.App., 369 So.2d 315; Hagendorfer v. State, Ala.Cr.App., 348 So.2d 1097, cert. denied, Ala., 348 So.2d 1101. Therefore, the trial court was proper in overruling appellant’s motion to exclude.

The trial court refused to give jury charge number five submitted by appellant. That charge which contained multiple rules of law was substantially and fairly covered in the court’s oral charge to the jury and its refusal will not cause a reversal. § 12-16-13, Code of Alabama (1975). The latter portion of charge number five deals with the definition of marijuana. As stated above it was substantially and fairly covered. The only omitted part of the requested charge was that marijuana does not include:

“It [marijuana] does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, sale, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.”

There was no evidence presented that the material identified by the State Toxicologist as marijuana consisted of any of the material listed above in the omitted portion of charge number five. Therefore, that portion of the charge was properly refused. Blalock v. State, Ala.Cr.App., 369 So.2d 35, cert. denied, 369 So.2d 38 (Ala.1979).

Appellant attacks the constitutionality of the statute § 20-2-1, et seq. of the Code of Alabama (1975) under the Ninth Amendment to the United States Constitution, under Article 4, § 45 of the State of Alabama Constitution of 1901, and that the statute is an unconstitutional delegation of legislative authority.

Appellant first argues that § 20-2-1, et seq. of the Code of Alabama (1975), which prohibits the possession of marijuana, offends the Ninth Amendment to the United States Constitution. The basis stated by appellant for such an argument is:

“Prior to the adoption of the United States Constitution, the growth, possession, and use of marijuana in the American colonies was completely unregulated. At the time of the adoption of the United States Constitution marijuana production, possession, and use remained uncontrolled. The United States Constitution does not regulate, control, or prohibit the growth, possession or use of marijuana. In fact, the United States Constitution makes absolutely no mention of marijuana. Therefore, the people, under the 9th Amendment, retain the right to grow, possess, or use marijuana and no Alabama statute has the authority to supersede the United States Constitution.” (Appellant’s brief, page 6).

The Ninth Circuit Court of Appeals, quoting from Justice Goldberg’s concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 488-489, 85 S.Ct. 1678, 1685, 14 L.Ed.2d 510 (Goldberg, J., concurring, 1965) defined the rights protected by the Ninth Amendment as:

“Rights under the Ninth Amendment are only those ‘so basic and fundamental and so deep-rooted in our society’ to be truly ‘essential rights,’ and which nevertheless, cannot find direct support elsewhere in the Constitution. Griswold v. Connecticut, 381 U.S. 479, 488-489, 491, 85 S.Ct. 1678, 1685, 14 L.Ed.2d 510 (Goldberg, J., concurring).” United States v. Choate, 576 F.2d 165 (9th Cir. 1978).
* * * * * *
“In the exercise of its police power, a state may regulate the administration, sale, prescription, possession, and use of narcotic drugs . . . [a]nd the legislature is empowered to include marijuana among the drugs subject to regulation as narcotics.” (citations omitted) 25 Am.Jur.2d Drugs, Narcotics, and Poisons (1976).
******
“The police power is an indispensable, essential, and vital attribute of sovereignty; indeed, some courts have viewed it as of higher status than an attribute of sovereignty, describing the power as constituting sovereignty, or as synonymous with sovereign power. In any case, it is clear that the power is a necessary attribute of every civilized government.
“The police power is as old as the civilized governments which exercise it. The states existed before the Constitution of the United States, and they possessed the police power before the adoption of that organic document. Moreover, it has been held many times that the Constitution supposes the pre-existence of the police power, and must be construed with reference to that fact.” (citations omitted) 16 Am.Jur.2d, Constitutional Law, § 360 (1979).

Appellant contends that the Alabama Uniform Controlled Substances Act violates Article 4, § 45 of the Alabama Constitution of 1901, because that act does not have a single subject. The Alabama Supreme Court in Boswell v. State, 290 Ala. 349, 276 So.2d 592 determined that the Alabama Uniform Controlled Substances Act satisfies the constitutional requirement of having a single subject. Boswell v. State, supra; Reynolds v. State, 56 Ala.App. 509, 323 So.2d 394; Powers v. State, 49 Ala.App. 690, 275 So.2d 369; Sawyer v. State, 50 Ala.App. 490, 280 So.2d 196.

The next contention of appellant is that § 20-2-1, et seq. of the Code of Alabama (1975) provides for an unconstitutional delegation of legislative authority by allowing the State Board of Health to “revise and republish” schedules of controlled substances. § 20-2-32, Code of Alabama (1975); § 20-2-20, Code of Alabama (1975).

The authority of the State Board of Health to add substances to or delete or reschedule substances to be controlled by the Alabama Uniform Controlled Substances Act has been upheld as not being an unconstitutional delegation of authority. McCurley v. State, Ala.Cr.App., 390 So.2d 15, reversed on other grounds, 390 So.2d 25 (Ala.1980); Napier v. State, Ala.Cr.App., 338 So.2d 463; Cassell v. State, 55 Ala.App. 502, 317 So.2d 348.

The fact that the indictment of appellant failed to state whether the offense is a felony or misdemeanor does not make the indictment subject to a demurrer. The applicable statute on controlled substances, § 20-2 — 70(a) Code of Alabama (1975), provides that possession of a controlled substance is a felony punishable by imprisonment of not less than two nor more than fifteen years and the defendant may be fined not more than $25,000.00. That statute also provides that possession of marijuana for personal use is only a misdemeanor punishable by imprisonment for not more than a year and a fine of not more than $1,000.00.

An indictment charging possession of marijuana includes the lesser offense of possession of marijuana for personal use. Lee v. State, Ala.Cr.App., 350 So.2d 743; Butts v. State, Ala.Cr.App., 346 So.2d 497; Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760. An indictment charging possession of marijuana, also, informs a defendant of the nature of the charges against him and fairly apprises him that he is charged with the lesser offense of possession of marijuana for personal use, a misdemeanor. Butts v. State, supra.

We find no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Freddie Earl REED. (Re: Freddie Earl Reed v. State of Alabama).
    80-565.
    Supreme Court of Alabama.
    July 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Norman WILLIAMS v. STATE.
    1 Div. 132.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.

      W. Donald Bolton, Jr., Foley, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Baldwin County returned an indictment for murder in the second degree against the appellant, Norman Williams; he entered a plea of not guilty, was found guilty as charged, and duly sentenced to ten (10) years in the state penitentiary.

The appellant was at all proceedings in the trial court represented by court-appointed counsel, and is represented in this Court by the same counsel. This appeal was submitted to this Court on briefs.

State’s witness, a police officer, testified, in substance, as follows: That on September 9, 1979 he investigated a collision that appellant was involved in between appellant’s automobile, a 1974 Oldsmobile, and a 1977 Pontiac automobile the deceased was in. The collision occurred about 2:49 A.M. at the intersection of County Road Number 64, and Alabama Highway 42, or U.S. Highway 98, a four-lane highway, in the city limits of the City of Daphne, in Baldwin County. That at this intersection there was a traffic control signal light set to operate at intervals of 30 to 60 seconds to regulate traffic going east and west, and north and south. The traffic control light is commonly called a red light. The red light was working immediately after the collision. The point of impact of the automobiles was in the extreme center of the intersection, about 10 or 12 feet from the red light. That the automobiles came to rest 162 feet from the point of impact. That the appellant’s automobile, the 1974 Oldsmobile, was north of and facing into the side of the 1977 Pontiac, the automobile the deceased was in. When the police officer arrived at the scene of the collision, the defendant was sitting up, pinned between the steering wheel and the seat of the 1974 Oldsmobile.

The police officer did not testify as to any skid marks, or as to the direction the automobiles were traveling. He identified that state’s exhibits number 1 was the automobile the deceased was in, a 1977 Pontiac, exhibit 2 was a picture of the deceased’s body on the right front seat of the 1977 Pontiac, exhibit 3 was a picture of appellant seated in his automobile, a 1974 Oldsmobile. He was pinned between the steering wheel and the front seat. At the time witness arrived at the scene, the deceased was dead. We quote from the record:

“Q Were you able, from your investigation, or did you, from your investigation, form an opinion as to the speed of this automobile?
“MR. BOLTON:
Your Honor, I object to this question. The proper predicate has not been laid for this witness to answer that question. “BY MR. HENDRIX:
“Q Let me ask you this. How long have you been a police officer?
“A Six years, four months and some few odd days.
“Q Do you remember the time that you have been a police officer? Has it been a part of your duty to investigate automobile accidents?
“A It has.
“Q And have you investigated automobile accidents as part of that duty?
“A Yes, I have.
“Q Did you go to school?
“A Yes, sir, I did.
“Q And did you cover materials such as this in school that you went to?
“A Yes, sir.
“Q Did you graduate from that school?
“A Yes, sir.
“Q Are you a certified police officer?
“A Yes, sir.
“Q And did you. engage there in that activity daily?
“A Yes, sir.
“Q And as a result of that activity, are you able to determine — are you able to form opinions as to the speed of vehicles involved in accidents?
“A Yes, sir.
“Q Did you, as a result of your investigation, based on your former knowledge and experience, form an opinion as to the speed of this automobile on that night? “A Yes, sir, I did.
“MR. BOLTON:
Your Honor, let me make an objection. I object to him answering the question because of the mental operation that it calls for of the witness which the witness is not qualified to answer.
“THE COURT:
Overrule the objection.
“BY MR. HENDRIX:
“Q Go ahead, Glenn.
“A Yes, sir, I did form an opinion.
“Q And what, in your opinion, was the approximate speed of this vehicle?
“MR. BOLTON:
Your Honor, I object to this questioning on the same grounds.
“THE COURT:
Overrule the objection.
“BY MR. HENDRIX:
“Q Go ahead.
“A Between eighty and a hundred miles per hour.
“Q Where had you been just prior to this accident?
“A Standing by my vehicle, ready to enter it in front of the police station.
“Q How far is the police station from where this accident happened?
“A It would be two and a half blocks from the police station, where I was standing, from the scene.
“Q While you were standing there, did you hear anything that got your attention?
“A Yes, sir, I did.
“Q What?
“A I heard a very shrill noise, wind breaking. It resembled the sound of an auto at a high rate of speed and a horn blowing continuously with intermediate sounds. And I heard what sounded like an explosion.
“Q Did it come from the direction where the accident occurred, where the wreck happened?
“A Yes, sir, it did.
“Q And did you go immediately to the scene there ?
“A Yes, sir, I did.
“Q And that’s what you described, here, today, that’s what you found when you got there?
“A Yes, sir, that’s true.
“MR. HENDRIX:
That’s all.”

The appellant states, in his brief, four grounds of prejudicial error made by the trial court.

In view of our conclusion that there is one prejudicial error which requires a reversal of this cause, we see no good purpose in discussing the other errors complained of in appellant’s brief.

There was no proof of any skid marks of any kind either before or after the collision. No sufficient factual predicate was laid upon which to base a conclusion with reference to the speed of the automobile. The witness did not see the accident, and perhaps based his opinion as to the speed of the automobile on the fact that they came to rest 162 feet from the point of impact.

We hold that under the facts in this ease the trial court committed reversible error when it overruled appellant’s objection on the grounds that the witness was not properly qualified to answer the question. Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167; Glaze v. Tennyson, Ala., 352 So.2d 1335; McWhorter v. Clark, Ala., 342 So.2d 903; Maslankowski v. Bean, 288 Ala. 254, 259 So.2d 804; Holuska v. Moore, 286 Ala. 268, 239 So.2d 192; Hugley v. State, 39 Ala.App. 104, 96 So.2d 315.

For the error pointed out, the judgment of the trial court should be, and is hereby, reversed, and this cause is remanded for a new trial.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a Retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. (Re Norman WILLIAMS v. STATE of Alabama).
    80-562.
    Supreme Court of Alabama.
    July 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    David Michael McGUIRE v. STATE.
    1 Div. 135.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied May 5, 1981.

      Michael Scheuermann, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of murder in the first degree of Robert Burke and a sentence to imprisonment for life.

Two Mobile police officers testified that early in the morning of June 3, 1979, they answered a call to go to a home at 701 Euclid Avenue in that city, where they found the dead body of the alleged victim lying in the living room with a gunshot wound in his head. There was much blood in and about the premises, and the furniture was in great disarray. A police investigation was commenced and about two weeks thereafter defendant was found sleeping under a bridge on - Government Boulevard, where he was apparently “camping” at the time. He was then and there taken into custody.

The only eyewitnesses to the homicide who testified were Frank Wendt and Carl Coleman Ritchie, Jr. The defendant did not testify. Wendt and Ritchie testified that they were “celebrating” at the home of the victim on the night of June 3, 1979, which according to other evidence in the case was before the body of the victim was found by the officers on the morning of June 3. The two young men had already been to several clubs that night, had drunk some beer and smoked some marijuana. They smoked marijuana while they were at the home of the victim. While they were there, a man entered with a stocking mask and a pistol. The man attacked the victim, and there was then a fight among the four men. According to their testimony, the intruder shot the victim in the head, shot Wendt in the head and severely knifed Wendt and Ritchie. About the time the intruder left, Wendt and Ritchie left the house, calling for help in the neighborhood, and one of them was sent to the hospital. Wendt testified that at one time the intruder said, “I’m gonna have to kill you, Robert. You know I’m gonna have to shoot you.” Neither of the witnesses was able to identify the assailant positively, but both testified in effect that the defendant looked like him or resembled him. Both of the witnesses indicated an acquaintance and former dealings with the deceased and that the deceased had been an habitual smoker of marijuana and had sold it.

Allen Watkins, another witness called by the State, testified that about a week after June 3, 1979, he was at his home with several others including the defendant. The following is part of his testimony:

“Q. What did he [defendant] tell you?
“A. All right. He told me about how he got into these guys house and about how he shot them, and about the cocaine—
“Q. What did he say about cocaine?
“A. All right, he said that the guys that he robbed were cocaine dealers; they had a lot of cocaine and they had some money; that’s what he was after.
“Q. That’s what he was after?
“A. Yeah.
“Q. What else did he tell you about what went on over there?
“A. All right, he told me that he broke in on them and there were three of them, and that he made them lay down on the floor, and he threw a blanket over them, and they had a pistol, and he went along and he shot two of them in the head, and the gun jammed, and when the gun jammed the third one jumped up and threw the blanket at him, and he had a knife, and he pulled his knife, and stabbed this other guy.
“Q. Did he say how many times he stabbed anybody?
“A. Yes, he did. I believe he told me twenty-one times, or twenty-seven times. I’m not sure, it’s been a while.
“Q. Did he mention anything about having seen any of these people before?
“A. Yes, sir.
“Q. What did he say?
“A. He said the one guy that he killed, he said that he broke in his house before, a couple_
“A. All right. He said that he had broke in this guy’s house once before and caught him asleep in bed and tied him up, and cut him up, and robbed him.
“Q. Did he say what he robbed him of on that occasion?
“A. I believe just some change in a bottle and some marijuana.
“Q. What was his demeanor like when he was telling you about all this? What was he acting like?
“A. Well, he was — he was scared that he was gonna get caught, and he didn’t know what he was gonna do, but he was bragging about how he done it.
“Q. Bragging?
“A. Yes, sir.”

We have seen no need to detail the testimony of Wendt and Ritchie as to all that occurred the night Robert Burke was killed, but details of their testimony are very similar to those narrated as shown above in the testimony of Allen Watkins. At least two other witnesses substantially corroborated the testimony of Allen Watkins as to what the defendant told him about a week after the death of Robert Burke.

Mary Virginia Price testified that in March 1979, she saw defendant at the apartment of a named person where others had gathered and that they “were all doing speed.” She said defendant was “running around saying he had something he had to do.” Her testimony continued:

“Q. And what kind of conversation did you and Mr. McGuire have?
“A. He just was_had some stuff he
had to do. He didn’t tell me what it was.
“Q. Did he_did you see a weapon?
“A. Later in the night I did.
“Q. Did he leave the apartment that night?
“A. Yes.
“Q. Did you stay there?
“A. I stayed for a while.
“Q. Did you see him later that night at the same apartment?
“A. Yes. In the A.M., in the morning.
“Q. Early that morning?
“A. Yes.
“Q. Did you all have any sort of a conversation at that point?
“A. He at that time had robbed Robert Burke.”

Further on in her testimony she said:

“Q. When he came back, did he tell you anything about where he had been?
“A. He had_told me and then I saw the wallet that he had taken and it had Robert Burke’s name on the credit cards and his driver’s license.
“Q. Did he say what he had done?
“A. He said he robbed him and he was laughing about it, giggling, thought it was funny because he beat him up a little bit.”

No contention is made that a jury issue was not presented as to the guilt of the defendant of murder in the first degree, and we see no reasonable basis for such a contention.

One of the two insistences on error is to the effect that the trial court should not have admitted in evidence, over the objection of defendant, or permitted the State’s counsel to argue as to such evidence, that defendant had been heard to say prior to the commission of the crime alleged in this case that he had previously robbed the alleged victim. The insistence is directed chiefly to the testimony of Mary Virginia Price, which we have stated in large part above. Appellant argues that the admission of such evidence is violative of the general exclusionary rule “that evidence of distinct and independent offenses is not admissible in the trial of a person accused of a crime.” Appellant is correct as to the general rule, but he is not correct in assuming that the evidence of his admission of the previous crime does not constitute a valid exception to the general exclusionary rule. Although there was other evidence sufficient to present a jury issue as to the identity of defendant as the person who killed the alleged victim, the motive of the person who killed him was of importance in connection with the issue of defendant’s guilt of murder in the first degree as charged or of any lesser included crime. The testimony as to the former crime was some evidence tending to show that the motive of defendant in killing the victim was to rob the victim of controlled substances that he possessed, or that defendant believed he possessed. The evidence also had a bearing on the issue of the intent of defendant in firing the shot that killed the alleged victim. The evidence was properly admitted. Allen v. State, Ala.Cr.App., 380 So.2d 313, 328-330 (1979), cert. denied, 380 So.2d 341; Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, 1207 (1979), cert. denied, Ala., 373 So.2d 1211.

“The foregoing exclusionary rule does not work to exclude evidence of all prior crimes, only such as are offered to show the defendant’s bad character. If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than as tending to prove guilt via bad character, then proof of such other act is admissible. “....” Gamble, McElroy’s Alabama Evidence, § 69.01(1) (1977)

After the jury had been selected and sworn, before any evidence was presented, and during the time the attorneys were making their opening statements as to what they expected the evidence to show, the following occurred:

“MR. COPELAND [Counsel for the State]: The evidence will also show you what kind of a man David McGuire is. He bragged to several of his friends about this. He bragged about it. He did have the cunning to say that when the first man was killed it was an accident. I don’t think he can explain the rest of it.
“MR. SCHEUERMANN [Counsel for Defendant]: Judge, I’m going to object to that statement by the District Attorney, ‘I don’t think he can explain the rest of it.’
“THE COURT: And I sustain the objection, and direct the jury to ignore it.
“MR. SCHEUERMANN: Move for a mistrial.
“THE COURT: And I deny that motion.”

Appellant argues that by that which is quoted above it is shown that the District Attorney made a “comment concerning the defendant’s failure to testify” in violation of Code of Alabama § 12 — 21— 220, and that the court committed reversible error in denying defendant’s motion for a mistrial. Appellant argues that it “is obvious from the facts of this ease that this statement by the District Attorney was a direct comment on the failure of the Defendant to testify.” The full meaning of the statement is not clear to us. The context thereof is not shown by the transcript. Perhaps it is referable to a part of a written statement made by the witness Allen Watkins that he had given to the prosecution in the investigative phase of the case, which is in the transcript as Defendant’s Exhibit A, which defendant’s counsel used in cross-examining the witness to show that therein the witness had stated that at the time the defendant made the oral incriminating statement as to what occurred, the defendant was drunk. One sentence in defendant’s Exhibit A is, “He [defendant] said that Robert was laying in the middle and Robert grabbed for the gun and the gun went off and he shot Robert.” Although invariably in opening statements as to what counsel expect the evidence to show, State’s counsel should scrupulously avoid attenuating the right of a defendant not to testify, by making any statement that would cause a jury to hold against the defendant the fact that he does not testify, more is required than that which is shown above to convince us that such was the intent or the result of what the district attorney said. We are not convinced that there was a violation of either the letter or the spirit of Code § 12-21 — 220. The transcript does not include any of the statement of counsel for defendant as to what he expected the evidence to show, nor does the transcript disclose whether the quoted statement of State’s counsel was before or after defendant’s counsel had made his statement.

From among the many authorities on the subject of the duty of State’s counsel to refrain from making any “comment concerning the defendant’s failure to testify” and the result thereof, appellant has selected Beecher v. State, 294 Ala. 674, 320 So.2d 727, 729-734 (1975), wherein the Supreme Court considered the Constitution of Ala. of 1901, § 6, giving it emphasis in connection with the particular Code Section, now § 12-21-220. Appellant quotes the following from “Beecher v. State at page 734” :

“Thus we hold today that where there is the possibility that a prosecutor’s comments could be understood by the jury as reference to failure of defendent to testify, § 6 is violated.”

The statement of the prosecuting attorney in Beecher v. State was, “No one took the stand to deny it” and was made in his closing argument to the jury. The disagreement between the parties on the trial and on appeal was whether the statement was a mere reference to the undisputed nature of the testimony that no one denied, as contended by the State, or, on the other hand, whether it included a comment upon the failure of defendant to testify, as contended by defendant. That disagreement was thoroughly ventilated in the trial court in a lengthy colloquy in which the attorneys and the trial court engaged.

In the instant case there was a motion for a mistrial in addition to an objection to the statement, but nothing was said as to the question whether the statement constituted a comment forbidden by § 12-21-220. If the particular point raised now had been raised on the trial, the trial court would have been, and this Court would now be, better able to determine whether the “possibility” existed that the statement “could be understood by the jury as reference to failure of defendant to testify.” A correct determination would have been aided then, and would be aided now by an expression of the views of counsel for both parties at the time the ruling of the court was invoked, as to the full meaning or implication of the statement. We do not have the benefit of the light that was shed upon the question in Beecher that enabled the Supreme Court to conclude that such possibility did exist. It seems but natural that even if counsel for defendant had then thought that such a possibility existed he would have made the point at the time and thereby exposed it to the view and consideration of all concerned.

To hold that defendant’s motion for a mistrial should have been granted would not have support in Beecher v. State. We find it to the contrary as stated at 320 So.2d 734-735:

“But it is concomitantly the duty of the prosecutor not to, in any manner, comment on the failure of the defendant to testify. Thus if there exists the possibility that the prosecutor has commented in such a manner that the jury may understand it as a comment on the defendant’s failure to testify, it is for the trial court to cure this violation of prosecutorial duty by prompt and vigorous instructions to the jury informing them of defendant’s right not to be compelled to testify and that they may draw no presumption from his decision not to testify. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974), and cases cited therein. In this regard we note that some comments can be so prejudicial as to be ineradicable. Stain v. State, 273 Ala. 262, 138 So.2d 703 (1961); McLemore v. International Union, 264 Ala. 538, 88 So.2d 170 (1956) (noncriminal case).
“. .. The trial court took no action to cure the effect of the prosecutor’s comment. In this posture we cannot say that Beecher received a fair and impartial trial, free of constitutional infirmity, to which he and all other persons are entitled.”

The trial court sustained defendant’s objection to the statement and excluded it from the consideration of the jury. It was correct in doing so, we think, because it was not in the province of opening statements but was in the nature of argument. We do not say that it would have been reversible error for the court to have overruled the objection, but the ruling was commendable in that it is inappropriate for counsel to incumber trials by attempting to make arguments to the jury until the proper time therefor, after the evidence has been presented.

The court was correct in denying defendant’s motion for a mistrial.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.

      . The night of June 3 was referred to loosely in the evidence, without any distinction between whether it was before or after midnight of June 2-3.


author: JONES, Justice.

text:
    Ex parte David Michael McGUIRE. (Re David Michael McGuire v. State of Alabama).
    80-567.
    Supreme Court of Alabama.
    July 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Willard Gene CRANE, alias v. STATE.
    1 Div. 203.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Rehearing Denied April 21, 1981.
    Thomas M. Haas and James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Possession of marijuana; sentence: fifteen years’ imprisonment.

At the conclusion of the State’s case, the appellant moved to exclude the evidence for failure to prove actual or constructive possession of marijuana or cocaine. The appellant contends the trial court committed reversible error in denying the motion. We agree.

On March 5, 1979, Mobile Police Officer Sammy Brown and two other officers of the Mobile narcotics division executed a search warrant at 3655 Old Shell Road, Apt. 408. While Officer Brown stationed himself at the rear entrance, the other two officers knocked on the front door and were admitted into the apartment by the appellant who was “standing in the foyer.”

When the search began, the appellant was instructed to sit down and remain seated. Officer Brown searched the downstairs kitchen and den area in the rear of the apartment and discovered a small plastic sandwich bag containing a miniscule amount of loose marijuana and two hand-rolled marijuana cigarette butts. Subsequently, he searched the appellant but found no marijuana or cocaine on the appellant’s person.

When the other two officers went upstairs to search the second floor of the apartment, a woman identified as “Mrs. Crane” was discovered asleep in the front bedroom. She was sent downstairs to be seated with appellant. The officers discovered in that upstairs bedroom a large garbage bag filled with approximately seventeen pounds of marijuana. It was located underneath some men’s and women’s clothing in a walk-in closet. From the top of the bedroom dresser, they seized a small black and white jewelry box containing not only ladies’ jewelry but also a small metal tube, a razor blade, and a red and white plastic straw. A subsequent analysis of this paraphernalia showed minute traces of cocaine. Also in the upstairs area the officers found a set of scales bearing marijuana residue.

The State brought the appellant to trial on a two-count indictment alleging unlawful possession of marijuana and unlawful possession of cocaine. The jury found the appellant guilty of unlawful possession of marijuana.

To authorize the submission of a criminal case to a jury, the State must present substantial evidence tending to prove each element of the offense. In a case where the defendant is charged with “unlawful possession of marijuana,” the State must necessarily prove that the defendant “possessed” the illegal substance. Roberts v. State, Ala.Cr.App., 349 So.2d 89, cert. denied, Ala., 349 So.2d 94 (1977). The oftquoted case of Radke v. State, 52 Ala.App. 397, 293 So.2d 312, affirmed, 292 Ala. 290, 293 So.2d 314 (1974), describes this element as follows: “Possession — the visible possibility of exercising physical control over personalty — is usually divided as actual (manucaptive) or constructive. Possession has three attributes: (1) actual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.”

It is obvious from the facts in this case that the appellant was not in actual possession of the contraband. Therefore, in order to sustain the verdict, the State had to prove that the appellant was in constructive possession of the marijuana.

Constructive possession may be determined by weighing facts tending to support a defendant’s necessary control over the substances against facts which demonstrate a lack of dominion and control. Roberts, supra. Where contraband is seized within a residence, as it was here, constructive possession can only arise “where the prohibited material is found on the premises owned or controlled by the appellant.” (Emphasis added.) Williams v. State, Ala. Cr.App., 340 So.2d 1144, cert. denied, Ala., 340 So.2d 1149 (1976).

The State offered no proof before the jury that the appellant owned or controlled the apartment where the contraband was found. No attempt was made to ascertain the name of the person in whose bedroom the marijuana was found or the names of the persons to whom the clothes in the bedroom belonged. No evidence whatsoever was presented to the jury which would indicate that the appellant had any knowledge of or connection with the marijuana found by the police.

In McCord v. State, Ala.Cr.App., 373 So.2d 1242 (1979), constructive possession was proved by an officer testifying that: (1) he knew of his own personal knowledge that the accused resided at the residence, (2) he saw letters in the house addressed to the accused at that address, and (3) he observed the accused dress with clothes from the closet in the bedroom where the contraband was found. On the other hand, this court found that the fact that the accused’s wife was present in the bedroom would have no bearing on the issue of the accused’s constructive possession.

In Cook v. State, Ala.Cr.App., 341 So.2d 183 (1977), we found the State failed to prove constructive possession. In that case we said, at 184:

“The State offered no proof that the appellant owned, leased, or lived in the residence where the contraband was found. Although the residence had been under surveillance for approximately two weeks prior to the search, no one testified that the appellant or his family were ever at the residence other than the afternoon of the search. There was no testimony that the appellant had any knowledge of or connection with the contraband found by the police.
“For aught that appears in the transcript of evidence, the appellant and his family could have entered the residence for the first time immediately prior to the search. They may have been there on a social visit. Their actual status on the premises is left to speculation and conjecture. Mere presence in a place where contraband is found is not equivalent to constructive possession. . . . ” (Citations omitted.)

In Williams, supra, we found the State failed to prove constructive possession where the evidence did not show the defendant owned or controlled the apartment searched. He was found in the apartment with a female companion. His shirttail was outside his pants, he had a “rumpled” appearance, and he was not wearing shoes. Contraband was found hidden in a back bedroom. Before leaving with the police, Williams got his shoes and a jacket from the same bedroom. The shoes were on the floor near the bed and the jacket was lying on some clothing on a chair or couch. Items of men’s clothing were found in the room, but the police could not determine ownership.

In the instant case the evidence presented in the presence of the jury only places the appellant in the foyer of the apartment searched and places a female identified as “Mrs. Crane” in bed in an upstairs bedroom. A bag of marijuana was found hidden under some clothing in a closet in that bedroom. Downstairs, no marijuana was found on the appellant, but a small amount was found in another part of the downstairs area.

The State’s evidence before the jury does not show (1) who owned or leased the apartment, (2) how long the appellant had been there or if he had ever been there before the incident in question, or (3) whether the appellant was aware of the presence of the marijuana. Likewise, there was no evidence of letters or bills observed in the apartment addressed to the appellant at that address. Therefore, at the end of the State’s case in chief, when the appellant made his motion to exclude the evidence, there was no evidence presented in the presence of the jury which would support a charge of constructive possession of marijuana.

The State was apparently under the impression that evidence submitted outside the presence of the jury during suppression hearings had proved the element of possession, dominion or control over the premises; however, such evidence will not suffice. Neither will evidence presented after the motion to exclude has been made and overruled. In Williams, supra at 1145, we stated:

“Testimony given after the State had rested its case and the motion to exclude had been presented, cannot be used to support the verdict of the jury. In considering the question as to whether the trial court correctly overruled the motion to exclude, we can only consider the evidence which was before the trial court at the time the motion to exclude was made. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968); Tooson v. State, 56 Ala. App. 613, 324 So.2d 327 (1975), cert. denied, 295 Ala. 426, 324 So.2d 333_” (Footnote omitted.)

In reviewing the sufficiency of the evidence on a motion to exclude the evidence, we can only look to the evidence which was presented to the jury at trial. McCord, supra. We are also limited to the evidence presented at the time the motion is made. Frye v. State, Ala.Cr.App., 369 So.2d 892 (1979); Kent v. State, Ala.Cr. App., 367 So.2d 508, cert. denied, Ala., 367 So.2d 518 (1978); Peoples v. State, 56 Ala. App. 290, 321 So.2d 257 (1975). We therefore find that the trial court erred in denying the appellant’s timely and well grounded motion to exclude the State’s evidence.

REVERSED AND REMANDED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte State of Alabama. (re Willard Gene CRANE, alias v. STATE of Alabama).
    80-528.
    Supreme Court of Alabama.
    July 24, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.