Boyington v. State

• Decision Date: 09 July 1999
• Citation: 748 So.2d 897
• Parties: Thomas Anthony BOYINGTON v. STATE.
• Court: Alabama Court of Criminal Appeals

748 So.2d 897

Thomas Anthony BOYINGTON v. STATE.

CR-97-2566.

Court of Criminal Appeals of Alabama.

July 9, 1999.

Rehearing Denied October 22, 1999.

Leonard F. Mikul, Bay Minette, for appellant.

Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

COBB, Judge.

Thomas Anthony Boyington appeals his conviction in the Circuit Court of Baldwin County for possession of marijuana in the second degree. His sentence of one year's imprisonment was split, and he was ordered to serve 14 days in jail and to complete two years' unsupervised probation.

A careful review of the facts is essential to the ultimate decision in this case. There is essentially no dispute as to the facts.

Brad Burks was an officer in the special operations division for the Baldwin County Sheriff's Department at the time of the offense. He testified that during his eight-year career in law enforcement, he had concentrated in the area of drug offenses. According to Burks, during his career he has had the opportunity to smell marijuana well over a thousand times and he has seen marijuana plants, marijuana packaged in every way possible, and marijuana prepared and ready to be smoked on countless occasions. He also testified that he had observed what he described as "activities outside bars" about 500 to a 1000 times.

On the night of September 7, 1996, he and Cpl. Steve Stewart, head of the narcotics division of the Gulf Shores Police Department, were assigned to the Baldwin County Drug Task Force. They were riding in an unmarked police vehicle, a 1990s model Pontiac Grand Prix, investigating complaints of drug use in parking lots in the area. The officers were dressed in plain clothes—jeans and T-shirts at the time. The officers arrived at the Change of Pace bar near Robertsdale, at approximately 11:15 p.m. As they drove toward the parking area in the back of the bar they saw two people near an air conditioning unit behind the bar. No one else was nearby. The officers thought, based on their experience and observations of activity at bars, that they should watch the two individuals because they might be preparing to smoke a marijuana cigarette, "a joint". The officers stopped at a location 25 to 30 yards from the two individuals, who were later identified as Boyington and James Larry Raines, and observed them for about one minute. Although Boyington and Raines were not directly under a light, the area where they were standing was illuminated by a light on the back porch of the bar and by a nearby streetlight. Boyington was sitting on the air-conditioning unit, and Raines was standing next to him. Burks saw Raines light something he intended to smoke. Burks elaborated as follows:

"I saw [Raines] take—it would be like a short—we didn't know what it was, and light it. The way he lit it and held it, the way it lit up, he blowed it, the way he smoked it, I believed—I believed it was marijuana at the time.

"He smoked it and he passed it to Mr. Boyington, who was sitting on the air conditioner. Mr. Boyington took it and smoked it in [the] same way, real short puffs like that, like holding his breath.

R. 17-18. He stated that Boyington passed what he was smoking back to Raines after he had taken a puff. Burks distinguished the actions of someone smoking a joint from those taken by someone smoking a cigarette.

"Typically, when a person lights a cigarette, they hold it differently two fingers, smoke, light it, small smoke it [sic], inhale it, put it down, let the smoke out. They typically don't share cigarettes. They smoke an individual, a pack, get one out of the pack for each person when somebody smokes."

R. 19. Burks stated that the actions he observed led him to strongly suspect that Boyington and Raines were smoking marijuana. It took approximately 30 to 40 seconds for the officers to drive closer to Boyington and Raines, to get out of their car, to shine a flashlight at them and for Burks to say: "Sheriff's office. Y'all get your hands where I can see them." R. 21. Burks testified that he smelled "a very strong odor of burning marijuana" at that time. R. 23. According to Burns, he did not smell cigarette smoke. At this time, Burks stated that he was "certain" Boyington and Raines had been smoking marijuana. R. 63. Boyington, who was sitting on the air-conditioning unit, starting hitting his right hand on the side of the air-conditioning unit and rubbing something between the fingers of his right hand. Burks stated that he believed Boyington was "putting out the joint." R. 70. Burks stated that rubbing a hand-rolled marijuana cigarette in your hands will cause it to disintegrate into little pieces and fall to the ground. Raines started to walk away from the officers. When Burks told Raines to stop because he was under arrest, Raines took a green leafy substance from his pocket and threw it into the air. Burks could see it "just going different directions." R. 23. Raines had to be forcibly subdued by the officers. A loaded gun and a holster were found on the ground under Raines when officers picked him up after he had been subdued. Boyington remained seated on the air conditioner. After handcuffing Boyington and Raines, the officers used flashlights to look for the substance that Raines had thrown in the air. The officers stated that the substance had dispersed into the grass and they found nothing. The officers also failed to find any remnants of the joint Boyington and Raines had been smoking. Nor did the officers find anything resembling a cigarette during there search. The only thing the officers found was a piece of plastic. They found it near the air conditioning unit, not where Raines had thrown into the air what Burks believed was been marijuana. Burks stated that marijuana is typically carried in plastic. The plastic recovered at the scene "had the odor of marijuana to it." R. 31. After being handcuffed, Boyington spontaneously stated that he had not done anything. This comment prompted Burks to smell the fingers of Boyington's right hand. Burks testified that Boyington's fingers smelled like marijuana. Raines and Boyington were carried to the city jail in Robertsdale and booked.

Charlie Jones was a lieutenant in Baldwin County Sheriff's Department in charge of the narcotics division and a member of the Baldwin County Drug Task Force at the time of the incident. He testified that he decided not to attempt to try to obtain fingerprints from the piece of plastic found at the scene because, based on his 10 years experience, he believed that it was next to impossible to lift or to identify latent fingerprints from this type material.

Steve Stewart had been employed by the police department in Gulf Shores as a narcotics investigator for approximately three and one-half years at the time of the crime. He was also a member of the drug task force. He testified that on the night of September 7, 1996, he was working with Officer Burks. He stated that as of September 7, 1996, he had smelled marijuana several hundred times. His testimony recounted observations similar to those recounted in the testimony of Officer Burks. Specifically, he stated that after observing Boyington and Raines's actions, it was his opinion that they were smoking a joint. When he approached Boyington and Raines, he smelled "the odor of a strong burning marijuana right in the area where [Boyington and Raines] were standing." R. 93. He stated that he was not focused on Boyington when they first approached because Raines looked like he was going to be a problem. Thus, he did not see Boyington rubbing his fingers as Burks described in his testimony. However, Stewart stated that he smelled Boyington's fingers and they smelled of marijuana. He stated that he saw Raines make a throwing motion with his arm but he did not see anything fall from his hand. He noted that his failure to see something might be explained by the fact that it took him longer to get out of the car and he was a greater distance from Raines than Burks was. After the subjects had been restrained he helped search the area for evidence but found only a piece of plastic.

On cross-examination of these witnesses, Boyington attempted to persuade the jury that the officers saw Boyington smoking a cigarette, that the odor of marijuana the officers said they smelled came either from inside the bar through the air conditioning unit, or from individuals who were outside before the officers arrived. No remnants of a cigarette or marijuana were found at the scene. It was also suggested that Raines ran from the officers because he was frightened. He pointed out that at the time of the arrest, it was late at night, they were outside a bar, he was surprised by two unknown men who were wearing jeans and T-shirts, and the men shined a bright flashlight in his eyes and blinded him as they rushed toward him, yelling. Boyington also pointed out that Raines had a valid Florida pistol permit at the time he was apprehended, and that typically Florida pistol permits are accepted as sufficient in the Robertsdale area.

I.

Boyington contends on appeal that because no marijuana or drug paraphernalia was recovered from the scene of the alleged crime, the circumstantial evidence presented to obtain a conviction was insufficient to form the basis for, and inconsistent with, a rational hypothesis of guilt. We construe this to be a claim that evidence was insufficient to sustain a conviction. We agree.

"`This Court is well aware that where "circumstantial evidence points to the guilt of the accused, it will support a conviction as strongly as direct evidence." Newsome v. State, 570 So.2d 703, 710 (Ala.Cr.App.1989). Accord, Jones v. State, 514 So.2d 1060, 1067 (Ala.Cr.App.), cert. denied, 514 So.2d 1068 (Ala.1987). However, "no rule is more fundamental or better settled than that convictions cannot be predicated upon surmise, speculation, and suspicion to establish the accused's criminal agency in the offense

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