Borden v. State
| Citation | 523 So.2d 508 |
| Decision Date | 13 October 1987 |
| Docket Number | 7 Div. 691 |
| Parties | Leonza BORDEN and Lance Borden v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Huel M. Love, Talladega, for appellants.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.
Leonza Borden (hereinafter referred to as "Leonza") and Lance Borden (hereinafter referred to as "Lance") were separately indicted for trafficking in marijuana, in violation of § 20-2-80(1), Code of Alabama 1975, and possession of cocaine, in violation of § 20-2-70. The defendants were joined for trial and found guilty, as charged. They were each sentenced to 21 years for trafficking in marijuana and 15 years for possession of cocaine, the sentences to run concurrently.
At about 8:00 a.m. on April 10, 1986, Lieutenant Alvin Kidd of the Sylacauga Police Department took up surveillance of the Borden residence. Nineteen-year-old Lance is Leonza's son and resided with him at the residence in question. Kidd watched the house for about three hours. From his vantage point and on three occasions, he observed a male enter the Borden residence. Each time one of the individuals came to the house, Leonza left the house; he walked to the vacant adjacent lot; after being gone thirty seconds to a minute, he returned to the house; and, then, the individual who had come to the house left. Kidd described his observation of Leonza in the following way:
"He walked out of the house, looked around slowly, walked around behind the house, looked down the hill to the right and the left, and walked back to the corner of the house, looked, got down in a crouching position to walk up through the bushes."
Later that same day, Deputy Mike Martin of the Talladega Sheriff's Department obtained a search warrant. At approximately 3:30 p.m., seven law enforcement officers arrived at the Borden residence to execute the search warrant. The warrant was served on the Bordens. Thereafter, the officers searched the house, the yard, and the adjacent vacant lot where Kidd had seen Leonza make the three trips earlier that morning. No contraband was found in the house or the yard. The officers found trails leading from the Bordens' residence to the adjacent lot. Both cocaine and marijuana were found at various locations in the vacant lot. Marijuana was also found hidden across the street from the Borden residence.
While the officers were searching, Lance came out of the house and began "hollering" the following at Martin: Martin responded, as follows: Lance replied, "Yeah, mother-fucker, you're going to tell me." Martin again asked him to be quiet. Yet, he kept yelling, "Yeah mother-fucker, you're going to tell me." By this time, some fifteen residents of the neighborhood had gathered in the road in front of the Bordens' residence, where they could hear the disturbance. Martin then instructed one of the officers to arrest Lance for disorderly conduct. The younger Borden resisted the arresting officer by "pushing, slinging and scuffling" and "cussing and calling everybody 'mother-fucker.' " He was forcibly placed in the police car and taken to headquarters.
After the search was completed, Leonza was asked by Martin if he would accompany an officer to the police station and consent to his fingerprints being taken. He agreed to go, stating the following: Pursuant to Leonza's inquiry of whether he was under arrest, Martin specifically told him that he was not under arrest. He was told that he would be given a ride to headquarters and, also, be brought back home. However, after he was fingerprinted, his family picked him up. He was subsequently arrested after he was indicted.
The Bordens argue that under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the court erred in not conducting a hearing to determine whether the prosecutor utilized his peremptory Subsequent to the selection of the jury, counsel for the Bordens made the following motion:
challenges to purposefully strike blacks from the jury venire.
The prosecution moved that a Batson hearing be continued. In response to this request, counsel for the Bordens stated:
"Let me respond in this way and ask the Court to hold my motion until the conclusion of this trial ... whether by motion or by trial ... and counsel will then either at that time ask the Court to take it up or withdraw it." (Emphasis added.)
The record indicates that, after this initial motion was made, defense counsel did not further pursue the matter. We can only conclude that defense counsel withdrew his request for a hearing. Furthermore, there being no adverse ruling by the trial court, we find there is nothing preserved for our review.
The Bordens, relying on Mulhern v. State, 494 So.2d 787 (Ala.Cr.App.1986), argue that the prosecution did not prove a prima facie case of trafficking in marijuana because it failed to prove that the amount of marijuana contained within the plant material was in excess of 2.2 pounds of marijuana--the amount required by § 20-2-80. In Mulhern, we found the following:
"Therefore, while there is evidence that the total weight of green plant material possessed by the appellant was in excess of 2.2 pounds, there is no evidence that the quantity of marijuana contained within that total weight of the green plant material was sufficient to satisfy the requisite amount found in the enacting clause of § 20-2-80, Code of Alabama 1975."
Id. at 789. We agree with the Bordens and find Mulhern to be similar to the instant case and, therefore, controlling.
In the instant case, Dr. Ronald Hubbard, a drug chemist with the Alabama Department of Forensic Sciences, testified about his examination of the plant material found in State's Exhibits Nos. 22, 23, 24, 26, 27, 28, 29, 31, 32, and 33. In describing the contents of these exhibits, he was asked about each individual exhibit. His testimony, in regard to all the exhibits except two, cannot be distinguished from that evidence found to be insufficient in Mulhern. As an example of this insufficiency, we quote the following testimony, which pertains to State's Exhibit 29:
The testimony concerning the other two exhibits--Exhibits 22 and 23--that could conceivably be argued to be sufficient under Mulhern is, as follows:
Any distinction, however, with the evidence found to be insufficient in Mulhern would rest upon a blatant ambiguity. When this particular testimony is considered in the context of Hubbard's testimony about the Furthermore, in conclusion, Hubbard testified to the following:
other eight exhibits, we must necessarily conclude that this evidence was also insufficient.
Hubbard's testimony clearly supports the premise that the Bordens were in possession of an excess of 2.2 pounds of green plant material. However, the testimony failed to specify that there was in excess of 2.2 pounds of marijuana contained in the plant material. From the testimony, we are unable to conclude whether all of the 9.94 pounds of the plant material was marijuana or whether a certain quantity of marijuana was included among various and assorted other plant materials.
The attorney general argues, in his brief, that appellants' objection has not been preserved for our review. We disagree. We find that defense counsel questioned the sufficiency of the evidence as to the weight of marijuana in his motion to dismiss made after the State rested. Furthermore, we reject the attorney general's argument that the testimony of the officer that State's Exhibit 22 was a large trash bag containing several "big clear bags full of marijuana" suffices as proof that the green plant material was, in fact, marijuana.
The trafficking in marijuana convictions are, therefore, reversed due to the insufficiency of the evidence, and judgments rendered for the defendants on those charges.
Leonza and Lance argue that the prosecution failed to establish that they had constructive possession of the controlled substances found on the property adjoining their residence and, more particularly, that they knew of the presence of the...
To continue reading
Request your trial
-
Allen v. State
...An adverse ruling by the trial judge is a prerequisite for preserving the alleged error for appellate review. Borden v. State, 523 So.2d 508, 511 (Ala.Cr.App.1987)." Harrell v. State, 555 So.2d 257, 259 (Ala.Cr.App.), affirmed, 555 So.2d 263 "An appellate court's review on appeal is limited......
-
DeBruce v. State
...reversed on prosecutor's impermissible comment of defendant's right not to testify, 571 So.2d 1251 (Ala.1990); Borden v. State, 523 So.2d 508, 510-11 (Ala.Cr.App.1987).12 Exactly how the district attorney learned of the appellant's oral statement is not disclosed in the record. During the c......
-
Presley v. State
...that the defendant possessed in excess of 2.2 pounds of the drug. Ex parte Sellers, 519 So.2d 1292 (Ala.1987); see also Borden v. State, 523 So.2d 508 (Ala.Crim.App.1987); Mulhern v. State, 494 So.2d 787 ".... "The State asserts that it met its burden of proving that Bohannon possessed in e......
-
Singleton v. State
...Temple v. State." Robinette v. State, 531 So.2d 682, 686 (Ala.Cr.App.1987), aff'd, 531 So.2d 697 (Ala.1988). See also Borden v. State, 523 So.2d 508 (Ala.Cr.App.1987). The record reveals the following: Officer Terry Ratigan arrived at the appellant's apartment on October 29, 1987, to execut......