Adams v. State

• Decision Date: 28 September 2012
• Docket Number: CR-11-0427
• Parties: Hugh Bradley Adams v. State of Alabama
• Court: Alabama Court of Criminal Appeals

Hugh Bradley Adams

v.State of Alabama

CR-11-0427

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 2011-2012

Dated: September 28, 2012

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Jefferson Circuit Court

(CC-11-83; CC-11-84; CC-11-85)

WELCH, Judge.

Hugh Bradley Adams appeals from his convictions for unlawful possession of the controlled substance methamphetamine, a violation of § 13A-12-212 (a) (1), Ala. Code 1975; first-degree unlawful manufacturing of methamphetamine,a violation of § 13A-12-218; and unlawful possession of drug paraphernalia, a misdemeanor proscribed by § 13A-12-260, Ala. Code 1975. Adams was sentenced as a habitual felony offender to 15 years' imprisonment for possession of methamphetamine, to life imprisonment without the possibility of parole for manufacturing methamphetamine, and to 12 months in jail, which sentence was suspended, for possession of drug paraphernalia.

Adams presents two issues on appeal. Because Adams does not challenge the sufficiency of the evidence, it is unnecessary to set forth a complete explanation of the facts that underlie his conviction. Adams was arrested for the instant charges as a consequence of officers' executing a misdemeanor arrest warrant for Adams at Adams's residence. As a result of searching Adams incident to his arrest, officers found a syringe and what they believed to be methamphetamine in Adams's pocket. A search of other individuals at the scene disclosed another small bag of what appeared to be methamphetamine and a receipt, with a date from the night before, for the purchase of cold medicine. The officers knew that cold medicine was used in manufacturing methamphetamine. Officers could smell the chemical order associated withmethamphetamine coming from Adams's garage. A search warrant was obtained. Numerous items associated with the manufacture of methamphetamine were discovered as a result of the search.

Adams contends on appeal that the trial court erred when it denied Adams's motion to dismiss the indictment charging him with the unlawful manufacture of methamphetamine. The indictment charged:

"The grand jury of said county charge that, before the finding of this indictment, HUGH BRADLEY ADAMS, alias BRADLEY HUGH ADAMS, whose name is to the grand jury otherwise unknown, did unlawfully manufacture a controlled substance or possess one or more precursor substances with the intent to manufacture a controlled substance, to-wit: Methamphetamine, and in conjunction therewith, the following conditions occurred: a clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school, in violation of Section 13A-12-218 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama."

(C. 90.)

Before trial began on August 22, 2012, Adams timely moved to dismiss this indictment, arguing that the indictment does not properly charge the unlawful manufacture of methamphetamine in the first degree because, according to Adams, it does not allege that at least two of the "conditions" listed in § 13A-12-218(a) existed in conjunctionwith a violation of § 13A-12-217, which defines the offense of unlawful manufacture of methamphetamine in the second degree. "[A] defendant must object to the failure of the indictment to state a charge 'during the pendency of the proceeding.'" Ex parte Harper, 594 So. 2d 1181, 1193 (Ala. 1991)(indictment was not void for failing to allege that distribution of controlled substance offence was committed knowingly).

Rule 15.2(d), Ala. R. Crim. P., provides:

"d) Objections Which May Be Raised at Any Time. The lack of subject matter jurisdiction or the failure of the charge to state an offense may be raised by the court or by motion of the defendant at any time during the pendency of the proceeding. Once such an issue is raised by the court, the procedure thereafter shall be the same as if the defendant had raised the issue by appropriate motion."

Methamphetamine is a Schedule II controlled substance.

A charge of first-degree unlawful manufacture of methamphetamine includes charging the elements necessary to charge second-degree unlawful manufacture of methamphetamine and at least two of the "conditions" found in § 13A-12-218 (a). Section 13A-12-217 defines second-degree unlawful manufacturing of a controlled substance as follows:

"(a) A person commits the crime of unlawful manufacture of a controlled substance in the seconddegree if, except as otherwise authorized in state or federal law, he or she does any of the following:

"(1) Manufactures a controlled substance enumerated in Schedules I to V, inclusive.

" (2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance.

"(b) Unlawful manufacture of a controlled substance in the second degree is a Class B felony."

Section 20-2-2(13), Ala. Code 1975, defines "manufacture" as:

"The production, preparation, propagation, compounding, conversion, or processing of a controlled substance either directly or indirectly, by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container; except [exclusions not applicable here.]"

The "conditions" necessary to elevate second-degree unlawful manufacture of a controlled substance to first-degree unlawful manufacture of a controlled substance are set forth in § 13A-12-218(a), which defines first-degree unlawful manufacture of a controlled substance:

"(a) A person commits the crime of unlawful manufacture of a controlled substance in the first degree if he or she violates Section 13A-12-217 andtwo or more of the following conditions occurred in conjunction with that violation:

"(1) Possession of a firearm.

"(2) Use of a booby trap.

"(3) Illegal possession, transportation, or disposal of hazardous or dangerous materials or while transporting or causing to be transported materials in furtherance of a clandestine laboratory operation, there was created a substantial risk to human health or safety or a danger to the environment.

"(4) A clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.

"(5) A clandestine laboratory operation actually produced any amount of a specified controlled substance.

"(6) A clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.

"(7) A person under the age of 17 was present during the manufacturing process.

"(b) Unlawful manufacture of a controlled substance in the first degree is a Class A felony."

(Emphasis added.)

Section 13A-1-2(3), Ala. Code 1975, defines a clandestine laboratory operation as any of the following:

"a. Purchase or procurement of chemicals, supplies, equipment, or laboratory location for the unlawful manufacture of controlled substances.

"b. Transportation or arranging for the transportation of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances.

"c. Setting up of equipment or supplies in preparation for the unlawful manufacture of controlled substances.

"d. Distribution or disposal of chemicals, equipment, supplies, or products used in or produced by the unlawful manufacture of controlled substances."

Adams argued before his trial and on appeal that his indictment alleged only condition number (4) of § 13A-12-218(a) -- "[a] clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school" — had occurred in conjunction with § 13A-12-217. Therefore, Adams's argued, his indictment did not charge first-degree unlawful manufacturing of methamphetamine. The State responded at trial and on appeal by asserting that "while the indictment is not drafted perfectly ... it is sufficient ... to give [Adams] notice of what he's being charged with" in compliance with § 15-8-25, Ala. Code 1975. (R. 20.) Section 15-8-25 states:

"An indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. In no case are the words 'force of arms' or 'contrary to the form of the statute' necessary."

According to the State, two conditions were set forth in the indictment. The State asserts that one condition, number four of § 13A-12-218(a), was clearly set forth after the indictment's second colon -- "[a] clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school." According to the State, before its first colon, the indictment charged a second condition by charging that Adams "did unlawfully manufacture a controlled substance or possess one or more precursor substances, to-wit: Methamphetamine." The State contends that "did unlawfully manufacture a controlled substance or possess one or more precursor substances, to-wit: Methamphetamine," means the same thing as and prohibits the same conduct as condition number (6) -- "[a] clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II." Therefore,according to the State, the failure of the indictment to specifically and separately set forth condition (6) of §...