Baker v. State

• Citation: 340 So.2d 854
• Decision Date: 05 October 1976
• Docket Number: 4 Div. 361
• Parties: Clifford BAKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 854

340 So.2d 854

Clifford BAKER v. STATE.

4 Div. 361.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

Rehearing Denied Nov. 16, 1976.

Myron H. Thompson, Dothan, for appellant.

William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.

HARRIS, Judge.

Appellant was convicted of possessing heroin as charged in the indictment. The Court fixed his punishment at seven years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him during arraignment and the trial. He pleaded not guilty. After conviction he was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Appellant raises two issues on this appeal in which he contends he is entitled to a reversal, (1) that appellant's person was searched without probable cause and without a search warrant, and (2) the State struck all blacks on the strike list panel.

We will answer these contentions in the order presented.

Lamar Hadden, an enforcement agent of the Alabama ABC Board, who was assigned to the Alcohol and Drug Division, testified that at approximately 4:00 p.m., on December 3, 1974, he received a telephone call from an informer who said he had seen Clifford Baker, appellant, with heroin on his person and that appellant was with one Frank Jackson in a blue 1970 Buick automobile in front of Johnson Homes Apartments where appellant lived. Hadden further testified that he had known appellant for several years. The informer told Hadden that appellant and Frank Jackson were going to deliver the heroin from Jackson's home to 211 Adams Street. The informer told Hadden that both Jackson and appellant had heroin on their persons and they were in a parking lot in front of the residence of appellant.

Hadden stated that his informer was a reliable and creditable person who had furnished him good information in the past that proved to be entirely accurate. He said the informer had previously given him information that led to the arrest and conviction of four persons charged in drug cases: Dwight Baker, Melton Foster, Johnny Johnson and Memphis Junior Jones.

Hadden further testified that immediately after getting the informer's telephone call, he got in his automobile and was accompanied by Police Officer Wallace Williams and they started to appellant's residence. They turned left on South Street and headed straight to the Johnson Homes Apartments when they met a 1970 blue Buick. The officers turned around and followed the blue Buick for several blocks. The traffic was heavy and they got to the three hundred block of North Cherry Street before they could get the Buick to pull over and stop. Officer Hadden went to the passenger's side where appellant was sitting and Officer Johnson went to the driver's side. There was a black female in the car with appellant and Jackson.

Officer Hadden ordered appellant to get out of the car and after getting out of the car the officer patted him down. Appellant had on a black leather jacket and was wearing a yellow cap. After patting him down he reached in the black leather jacket and got ten little plastic bags that were wrapped in tinfoil inside the black jacket. While holding the package in his hand, appellant grabbed the bag from the officer's hand and ran. The officer ran after him and saw him throw the package down in the middle of the street and he kept running. The officer followed him for some distance and realized that he was unable to catch him, so he turned around and came back and picked up the package that appellant had thrown in the street. After he got back to the patrol car, he gave the package to Police Officer Wallace Williams. They then took Frank Jackson and the female occupant of the car to the Dothan City Jail. Approximately 25 minutes later Officer Hadden got a telephone call from the same informer who had told him about the heroin being in the possession of appellant and in this telephone call the informer told Officer Hadden that appellant had returned to his residence, Apartment Number 5, in the Johnson Homes Apartments. The officers secured a search warrant and went to the apartment and knocked on the door. A black female came to the door and the officer identified himself but the woman would not take off the night latch to the door. Officer Hadden pushed against the door until he broke the night latch and he and the other officers entered the apartment and they found appellant in one of the bedrooms sitting in a chair looking at television. He saw the black leather jacket from which he had taken the heroin, lying on the bed. Appellant was carried to the City Jail.

On cross-examination Officer Hadden testified that he told appellant that he was under arrest at the time he patted him down and got the white powder out of his black leather jacket. He further testified that he had known the appellant since 1970 and had seen him around the Johnson Homes Apartments on several occasions. He stated that while appellant was running he lost the yellow cap that he was wearing and the officers found it.

Police Officer Wallace Williams testified to substantially the same set of facts as were related by Officer Hadden. He stated that he knew both appellant and Frank Jackson whose nickname was 'Fish' and that he recognized both of them when they stopped the car; that he went to the driver's side while Officer Hadden went to the passenger's side. That he asked 'Fish' for his identification, that is, his driver's license and told him that he was a police officer and to put the car in park, switch it off, and for all three to get out of the car with their hands on top of the car. He further testified that while he was examining 'Fish's' driver's license, he told him that they had information that he and appellant had heroin in the car and that they wanted to search the automobile. He further testified that when appellant got out of the car, Officer Hadden reached into one of the pockets of his jacket and removed the little plastic-like bag and was holding it in his hand looking at it when all of a sudden appellant grabbed the bag and ran and that Officer Hadden ran after him. That a short time later Officer Hadden returned to the automobile and handed him the plastic container containing some tinfoil packets. He further testified that a little later they ran a field test on the white substance in the plastic bag and determined that it was heroin. He stated that he took the ten small tinfoils in the plastic bag and folded them up and put them in a manila envelope and took this to the office and locked it in a file cabinet; that it stayed in the file cabinet until he turned it over to Sergeant McCord of the Dothan Police Department who carried it to the Crime Laboratory in Enterprise, Alabama.

He corroborated the testimony of Officer Hadden that some 25 or 30 minutes after they had carried the driver and the female passenger to the Dothan City Jail, Officer Hadden got a telephone call advising him that appellant was now back at his apartment. He testified that they secured a search warrant and went to the apartment to conduct a search. They knocked on the door and a woman named Mamie Davis to whom the apartment was rented came to the door. They identified themselves and told her they had information that appellant was there and she asked them if they had a search warrant and she was advised that they did have a search warrant, but she would not open the night latch. Officer Hadden bumped the door with his shoulder and broke the night latch and the officers went in.

Under questioning by the trial judge, Officer Williams testified that he took the package turned over to him by Officer Hadden and put it in a file locker and locked it up; that two or three days later Sergeant McCord was going to Enterprise, and Williams unlocked the file cabinet and took out the package and gave it to McCord to deliver to the Crime Laboratory in Enterprise. He further testified that the package was in the same condition when he turned it over to McCord as it was when he took it into his possession originally, except for a small portion that he took out to make the field test.

The State called Sergeant James R. McCord who testified that he was employed as a police officer with the City of Dothan and had been assigned to work on the Narcotics Detail with Officers Williams and Hadden. McCord testified that Officer Williams turned over to him the same package that Hadden had given him a few minutes after they had stopped the 1970 Buick automobile. That this package was locked in a cabinet and it was placed in his custody to carry to the Crime Laboratory in Enterprise; that he personally delivered this package to Ms. Melinda Long at the Toxicology Laboratory in Enterprise. He said the envelope was properly sealed and stamped at the time he delivered it to the Crime Laboratory and it was in the...