Brown v. State

• Decision Date: 07 October 1980
• Docket Number: 8 Div. 374
• Citation: 392 So.2d 1248
• Parties: Rickey Lee BROWN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1248

392 So.2d 1248

Rickey Lee BROWN v. STATE.

8 Div. 374.

Court of Criminal Appeals of Alabama.

Oct. 7, 1980.

Rehearing Denied Oct. 28, 1980.

Ronald A. Drummond, Scottsboro, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Rickey Lee Brown was indicted by the Jackson County grand jury for the unlawful sale of marijuana. Trial was had with the jury returning a verdict of guilty. The trial court sentenced him to ten years imprisonment. From that conviction he now appeals in forma pauperis.

Officer Freddie Strength of the Alabama Department of Public Safety Narcotic Unit testified that in June, 1979, he was instructed by Captain E. B. Taylor to assist the Jackson County district attorney in apprehending drug dealers in Jackson County. He was to establish an undercover operation and to do whatever the district attorney thought was necessary to accomplish such. On June 14, Officer Strength met Ray Sisco, an informer who had information Around 3:15 p. m. on June 16, Officer Strength, along with Ray Sisco, met appellant at his automobile repair shop in DeKalb County. Mr. Sisco introduced him as a man from Huntsville. They discussed the purchase of one pound of marijuana. Officer Strength stated that appellant suggested a price of $400.00 and said he would deliver it between 5:00 and 6:00 p. m. at Mr. Sisco's trailer home in Jackson County. Appellant did not appear at the designated time and around 9:15 p. m. the same evening, Officer Strength and Mr. Sisco met appellant at the trailer home of Roger Buttram wherein appellant told him he could not get any marijuana and that he was waiting on a payment for a debt owed to him so that he could buy some more. Appellant agreed to deliver the marijuana to Mr. Sisco's later that evening but did not do so.

helpful to his investigation. Mr. Sisco was introduced to him by the district attorney. Officer Strength testified that he had no prior personal knowledge of any arrangement between the State and Mr. Sisco for procurement of his services although he later learned of such at a lunch recess during the course of the trial. He stated that his understanding of the arrangement concerned the release of Mr. Sisco's wife from the State penitentiary in exchange for his assistance in apprehending drug dealers in Jackson County. Officer Strength testified that he did not know that Mr. Sisco's wife was in custody at the time of the instant incident and does not know if she was placed on probation.

Officer Strength testified that the following day, he met appellant and went with him to Mr. Buttram's trailer. Appellant told Officer Strength that if he wanted only one pound they could get it at Mr. Buttram's. Officer Strength testified that at the trailer, he bought one pound of marijuana from appellant for $400.00. He stated that appellant told him he was the biggest "dealer" in the area.

Around 8:55 p. m. on June 25, Officer Strength, appellant, Marty Outlaw, a friend of appellant's, and Mr. Sisco met at Mr. Sisco's trailer home in Jackson County. Therein Officer Strength, who was equipped with a wireless transmitter, had a conversation with appellant concerning the sale of twenty pounds of marijuana. The appellant stated that he could get up to six hundred pounds and continually repeated the price of $350.00 a pound. The appellant told Officer Strength that if he waited, he could get the marijuana at a less expensive price.

Officer Strength testified that the above conversation was being monitored and recorded in the back bedroom by narcotics agent James G. Ward, and ABC agent Billy White. He stated the first conversation lasted approximately twenty minutes and upon its completion appellant and Mr. Outlaw left. Around 9:30 p. m. the same evening, a second conversation occurred with the same parties being present. Afterwards, appellant and Mr. Sisco left the trailer around 10:30 p. m. and approximately one hour later returned. Appellant entered the trailer carrying a filled plastic garbage bag. After another conversation, Officer Strength stated that agents Ward and White entered the room. Appellant was then arrested. Officer Strength identified certain voices on the tape recording and the green garbage bag and its contents. He stated that he turned the garbage bag and its contents over to ABC agent Michael Kirk.

The State called agent James G. Ward for the purpose of laying the proper predicate for introduction of the tape recording into evidence. Agent Ward stated he was in the back bedroom of Mr. Sisco's trailer on June 25 monitoring and recording various conversations. He stated that he recognized, on the tape, the voices of Officer Strength and Mr. Sisco. Agent Ward testified that at the trailer he saw the appellant and about twenty pounds of marijuana. The tape recording was offered, admitted into evidence, and played to the jury after Officer Strength retook the witness stand.

Agent Michael Kirk testified to receiving certain items from Officer Strength around 2:10 a. m. on June 26. He identified the State toxicologist Martha Odom testified that on June 26 she received certain evidence from Agent Kirk. After analyzing the contents of each exhibit, she found each of the twenty bags contained within the green garbage bag to contain marijuana. Ms. Odom stated she returned the evidence to Agent Kirk on December 11. The marijuana was offered and admitted into evidence.

green garbage bag and its contents. Agent Kirk testified that the evidence was kept under his control and possession until it was delivered to State toxicologist Martha Odom.

Officer Strength was recalled and testified that on June 26 Mr. Sisco's wife was not brought to the trailer after appellant's arrest. Officer Strength stated that at the time of appellant's arrest Mr. Sisco stated that there was a car nearby containing persons armed with machine guns as "back up" for appellant in the event of a set up.

On cross-examination, Officer Strength denied offering Mr. Outlaw a syringe filled with some drug and attempting to sell him cocaine. He stated that he never told Mr. Sisco what to say when they talked to appellant.

Alabama Department of Public Safety investigator V. E. McLelland testified that he was present at Mr. Sisco's trailer after appellant's arrest. He stated that prior to such, he was nearby in a van with Agent Kirk and other law enforcement authorities. He stated that after appellant's arrest he was transported to the Scottsboro jail wherein he gave appellant his Miranda warnings. Afterwards he asked whether appellant wished to make a statement. Appellant made certain incriminating statements, the substance of which is detailed in a subsequent portion of this opinion. At the conclusion of Investigator McLelland's testimony, appellant moved to exclude the State's evidence on the ground that it had failed to prove a prima facie case. The trial court properly overruled appellant's motion. Lee v. State, Ala.Cr.App., 350 So.2d 743 (1977); § 20-2-70(a) Code of Alabama 1975.

Appellant did not testify in his own behalf but called Marty Outlaw and Ray Sisco as witnesses to dispute the testimony of Officer Strength.

Mr. Outlaw's testimony, some of which is quoted in subsequent portions of this opinion, contradicted Officer Strength's account of the June 25 incident. Mr. Outlaw asserted that appellant and he had been framed and that Ray Sisco had told them what to say, especially concerning the price for the marijuana and their "back up" support.

Ray Sisco's testimony while not contradicting Officer Strength's testimony, did conflict with that of Mr. Outlaw. Mr. Sisco testified to his meeting with the district attorney and the arrangement for the probation of his wife in exchange for his assistance.

Appellant ended the presentation of his case by calling several character witnesses, including his wife.

I.

Appellant contends that the trial court erred in overruling his demurrer to the indictment. He asserts that it did not allege with particularity and specificity the occasion, type of transaction and quantity of marijuana involved in the instant offense.

The indictment is in a form that substantially follows the language of § 20-2-70(a) Code of Alabama 1975, the statute under which the appellant was indicted. § 15-8-23 Code of Alabama 1975.

Furthermore, averments as to time and quantity are unnecessary in order to sufficiently apprise appellant of the charge against him. § 15-8-30 Code of Alabama 1975. Law v. State, Ala.Cr.App., 342 So.2d 412 (1976), cert. denied, Ala., 342 So.2d 413 (1977), cert. denied, 434 U.S. 919, 98 S.Ct. 392, 54 L.Ed.2d 276 (1977); Hare v. State, 53 Ala.App. 596, 302 So.2d 569 (1974). Consequently, we find the indictment sufficient to apprise appellant of the offense with which he is charged.

II.

Appellant contends that the trial court improperly overruled his motion to quash the indictment on the grounds that he had been denied an absolute right to a preliminary hearing under § 15-11-1 Code of Alabama 1975 and had been denied his right to a speedy trial.

A.

Appellant was arrested on June 26, 1979 and moved, on July 18, 1979 for a preliminary hearing. The trial court, on July 24, 1979, set August 10, 1979 as the time for conducting the preliminary hearing. On August 1, 1979 appellant was indicted for the instant offense.

This question has been previously decided adversely to appellant's position in Duncan v. State, Ala.Cr.App., 369 So.2d 885 (1979). We see no reason to reiterate its discussion of the question. See also: Daniels v. State, Ala.Cr.App., 335 So.2d 412 (1976).

B.

The record reveals that appellant was arrested on June 26, 1979. On July 6, 1979, he posted a $5,000.00 bond. He was indicted on August 1, 1979, and arraigned on August 21, 1979. On August 23, 1979, appellant posted a $10,000.00 bond. On October 3, 1979, the trial court set October 29, 1979 as the date of appellant's...