Brannon v. State

• Decision Date: 24 February 1989
• Docket Number: 1 Div. 509
• Citation: 549 So.2d 532
• Parties: Chapman BRANNON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 532

549 So.2d 532

Chapman BRANNON v. STATE.

1 Div. 509.

Court of Criminal Appeals of Alabama.

Feb. 24, 1989.

Rehearing Denied April 14, 1989.

Certiorari Quashed Sept. 22, 1989 Alabama Supreme Court 88-957.

T. Jefferson Deen III of Clark, Deen & Copeland, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Chapman Brannon, was convicted of trafficking in cocaine, in violation of § 20-2-80, Code of Alabama 1975, and was sentenced to 99 years' imprisonment. This appeal arises out of appellant's second conviction for trafficking in cocaine. Appellant's initial conviction was set aside and a new trial granted because of the admission of illegal evidence. Seven issues are raised on appeal.

The evidence presented by the State tended to establish that on March 9, 1986, Deputy James Long of the Mobile County Sheriff's Department received information that cocaine transactions were being conducted at 1462 Eagle Drive in Mobile. During the next few days, he staked out the residence at 1462 Eagle Drive as much as time permitted. On March 11, between 7:00 and 8:00 a.m., Deputy Long drove by the residence and saw a black Plymouth vehicle with Florida license plates. He asked Deputy Piggott to run a check on the license registration of that vehicle. The automobile was found to be registered to a Charles Edward Sapp, an individual known to have drug associations in Florida.

Deputy Long then told Deputy Emrich to "stake out" the house at 1462 Eagle Drive. Emrich began the surveillance about 8:50 a.m. that same morning. Emrich was in a blue unmarked van parked in a parking lot across the street from 1462 Eagle Drive. Parked at that residence were a 1978 black Dodge, a 1974 Ford pickup truck, and a blue AMC Hornet. These vehicles were registered to Charles Sapp, Jerry Woodrop, and Margaret Bishop, respectively. At 10:30 that morning, Emrich observed a white female later identified as Margaret Bishop leave the residence at 1462 Eagle Drive in the blue AMC Hornet. She returned at 11:50 a.m. and was assisted in unloading groceries from her car by a bald, white male known to police as Charles Sapp. Deputy Emrich related this information to Deputy Long minutes later when they met.

After this meeting, Deputy Long returned to the Sheriff's Department. Long then obtained $2,000 in $100 bills from AmSouth Bank, which he marked and photocopied. He also covered the bills with a fluorescent powder which adheres to paper so that when an individual touches the treated surface, the powder sticks to his hand and will show up as a fluorescent color when his hand is placed under a fluorescent light. Long gave this specially marked and treated money to Deputy John Piggot, who was to meet with a confidential informant.

Deputy Piggot gave an informant the money to make contact with a Gerald Neece, and to go with Neece to make a cocaine buy at 1462 Eagle Drive. The informant was equipped with a hidden body microphone, which later proved to be inoperable. Piggott and Special Agent Cliff Brown of the DEA followed the informant to meet Neece. Piggott and Brown were in an unmarked car and were dressed in undercover clothes. They waited for approximately ten minutes and then saw Neece and the informant drive past them in a red and white Ford Thunderbird automobile. Piggott and Brown followed the two at a discreet distance but maintained visual surveillance. After becoming separated from the red and white Thunderbird in traffic, Piggott and Brown again picked up the Thunderbird about a mile from 1462 Eagle Drive. The informant and Neece were still in the car. Piggott and Brown then followed the red and white Thunderbird to 1462 Eagle Drive, where it was stopped and parked.

While Piggott and Brown were following Neece and the informant, Deputy Emrich had left the stakeout about 1:30 p.m. and returned approximately two hours later in a telephone truck. With him was Auxiliary Deputy Rick Drews. They parked the truck across the street and then set up a ladder going up a telephone pole, walked around the area, and pretended to be working on the telephone lines and pole. Around 4:20 p.m., Emrich and Drews saw Neece and the informant drive up to 1462 Eagle Drive in a red and white Thunderbird. Neece went in the residence, came out a few minutes later, and got back into the Thunderbird. Because the informant's body microphone was inoperable, the two officers were unable to hear what occurred inside the house.

Neece backed the car out of the driveway into Eagle Drive, where it "stalled out" in the middle of the street. A man later identified as the appellant Chapman Brannon--on whom law enforcement officials had no information--came out of the house at 1462 Eagle Drive and assisted Neece in pushing the car out of the street and into a nearby parking lot. The men then raised the hood and began working on the car. Deputy Emrich, an eyewitness to this incident, relayed information of it to other surveillance units. Deputy Piggott also witnessed the incident from another vantage point and advised the other units of what he saw. Based on these reports, Deputy Long advised Piggott and the other officers to go ahead and "take them down."

All of the officers involved in the surveillance then converged on appellant and Neece, who were still in the parking lot trying to get the Thunderbird operable. Deputy Piggott and Agents Brown and Odom "hit" on the car and got Neece out of the car and under control. The officers then secured everyone that was in the parking lot--including appellant--and proceeded with their investigation.

Shortly thereafter, Deputy Long left the scene and went downtown to secure a search warrant before Neece or the appellant was searched. While Deputy Long was on his way downtown, Auxiliary Deputy Drews "patted down" the appellant in Deputy Piggott's presence to make sure appellant was unarmed. Drews found a wad of money in appellant's right pants pocket, which he then gave to Piggott. The wad of money consisted of twenty $100 bills, and it appeared to Piggott that it was the marked money which he had supplied to the informant. Piggott asked appellant where he lived and appellant pointed to the residence at 1462 Eagle Drive. After appellant was frisked, Neece was similarly searched by Deputy Brown, who found a plastic bag in his shoe containing white powder. Piggott relayed this information to Deputy Long by radio. Subsequent testing proved this white powder to be 30.5 grams of cocaine. This evidence was later turned over to Deputy Long.

Deputy Long returned to the scene about 5:00 p.m. with a search warrant, and the searches commenced. Deputies Emrich, Drews, Long, Cliff Brown, James Carter, and Sammy Paul then proceeded to search the residence at 1462 Eagle Drive. During the search, Emrich found a pipe in a bedroom dresser drawer underneath some female clothes, a clear plastic jar under the bed, and another small mug jar on the telephone table in the living room. Both jars contained plant fragments later determined to be marijuana. All of these items found by Deputy Emrich were turned over to Deputy Long. Emrich also observed, but did not seize, a photograph of the appellant and Margaret Bishop.

Meanwhile, Auxiliary Deputy Rick Drews was searching another part of the residence. During his search he found a clear bag containing a white powdery substance in the bottom of a beer lamp. Subsequent testing established this substance to be a mixture of cocaine and insotol. The weight of this substance was 28.5 grams. Drews also found a set of scales in a bedroom closet. He gave both of these items to Deputy Long.

Deputy James Carter, also participating in the search, found a brass straw in a jewelry box in the bedroom of the residence. He turned it over to Deputy Long. Agent Brown found several pipes in a top dresser drawer in the bedroom. This was also turned over to Deputy Long. In addition to all of the items given to him by the other searchers, Deputy Long also found a pie pan containing rolling papers, roach clips, and a homemade pipe. Subsequent examination of the straw, pipes, and pie pan revealed the presence of cocaine (straw) and marijuana (pipes and pie pan) residue.

The last person involved in the search of 1462 Eagle Drive was Deputy Sammy Paul, a canine handler for the Sheriff's Department. Deputy Paul and the department's drug sniffing dog went over the entire residence. The dog "made a hit" on a travel bag located in the bedroom. This bag contained different kinds of pills. These pills, however, were later determined to contain no controlled substances. Officer Paul also found a rent receipt showing that the residence at 1462 Eagle Drive was in the name of Margaret Bishop. These items were also turned over to Deputy Long.

During the search of the house, Margaret Bishop entered the house. When asked who she was, she said she lived there and that her name was Margaret Bishop. Following the search, Bishop, Neece, and the appellant, Chapman Brannon, were arrested and taken downtown for processing.

I

Appellant first contends that his retrial was barred due to the conduct of the prosecutor during his first trial. The appellant has cited as authority for his position the case of Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Our examination of this decision convinces us otherwise.

In Oregon v. Kennedy, supra, the United States Supreme Court held that "the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Id., 456 U.S. at 679, 102 S.Ct. at 2091. (Emphasis supplied.) The Court went on to state that "prosecutorial conduct that might be viewed as harassment or overreaching, even if...