Burns v. State, 8 Div. 660

• Decision Date: 16 December 1975
• Docket Number: 8 Div. 660
• Citation: 327 So.2d 920,57 Ala.App. 281
• Parties: Robert Spencer BURNS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 920

327 So.2d 920

57 Ala.App. 281

Robert Spencer BURNS v. STATE.

8 Div. 660.

Court of Criminal Appeals of Alabama.

Dec. 16, 1975.

Rehearing Denied Jan. 20, 1976.

William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Defendant-appellant was charged in an indictment with the unlawful possession of 'Marihuana, one of the controlled substances enumerated in Title 22, Section (258)(29)(D)(Schedule 1), known as the Alabama Uniform Controlled Substances Act.' A jury found him guilty and also found that 'he did not possess it just for the purpose of his personal use only.' After a pre-sentence investigation and obviously careful consideration by the court of defendant's application for probation the court sentenced him to six years imprisonment in the penitentiary and denied probation.

The indictment included three other defendants, but appellant-defendant was tried separately.

On Sunday morning, September 15, 1974, six law enforcement officers, fortified with a studiously prepared and well supported search warrant, went to the home of defendant, a trailer in a trailer park in Lauderdale County, and assiduously searched the two bedrooms and other parts of the trailer for 'Marijuana, Cocaine and Heroin' as authorized by the search warrant. In the course of the search, they opened two suitcases in the bedroom of defendant and his wife. In one suitcase they found (chiefly impregnated in the lining thereof) a leafy-type substance that a competent agent of the Alabama Department of Toxicology and Criminal Investigation testified was 'marijuana.' ¹ One witness stated that the amount of marihuana found was approximately a spoonful; according to the testimony of the toxicologist, it weighed .57 of a gram or approximately 1/60th of an ounce. In the other suitcase was the sum of $10,996.00 in United States currency. In distinguishing one from the other, we will refer to one as the marihuana suitcase and the other as the money suitcase.

In the trailer at the time of the search were appellant, his wife and another couple who were married between the time of the search and the trial. The four were indicted in the same indictment.

Defendant did not testify, but his wife and the other female occupant of the trailer testified in his behalf. They said that about 4:30 or 5:00 P.M. the afternoon before the search, a man by the name of Bill Wilson, accompanied by two other men, came to the trailer and left the suitcases with appellant; that Mr. Wilson stated that they did not have room for the suitcases in the two-passenger automobile they were traveling in at the time and that he would return and get them the next day. The particular Bill Wilson was not living at the time of trial. He had been killed 'down Cypress Creek,' an historic watercourse in Lauderdale County.

Aside from that part of the transcript of testimony that was admitted in evidence for consideration by the jury, the record is replete with indications that appellant was in the illegal drug business. Such information is to be found particularly in the evidence taken voir dire out of the presence of the jury as to the application for and the issuance of the search warrant, in the statements made to the trial court, even of appellant himself, on his application for probation, and in other portions of the record that do not form a part of the transcript of the testimony presented to the jury. However, we cannot go beyond the testimony presented to the jury to determine whether there is ample evidence to support the verdict, and for that purpose we limit our consideration to the evidence before the jury. In summary, we are persuaded that the jury was warranted in finding appellant guilty of possession of the prohibited substance and that whatever truth there may have been in the testimony of defendant's wife and the other woman as to the visit by Bill Wilson, it was so transparent that a jury could see through it to appellant's guilt. In this connection, we note that the evidence before the jury disclosed that the other female occupant of the trailer wrote appellant while he was in jail 'I'm doint this for you, Theresa, & David, don't worry . . . I'll claim For us.' In addition, it should be noted that there was evidence that appellant claimed the money or some of the money in the money suitcase.

On the trial, appellant's attorney strenuously objected to the introduction of evidence relative to money in the money suitcase. He contended that it was not relevant to the charge of possession of marihuana and that it was prejudicial. That it was injurious to defendant, we have no doubt, but we also have no doubt that it was relevant and admissible testimony. According to defendant's witnesses, the two suitcases were brought to the trailer at the same time by the same person. The relation between the practically empty marihuana suitcase and the substantially full, in one sense, money suitcase is obvious. Testimony as to the money in one suitcase was relevant to the issue of whether any possession by defendant of marihuana in the other suitcase was for defendant's personal use only. Funches v. State, 53 Ala.App. 330, 299 So.2d 771.

The problem presented by the possession of such a minute amount of marihuana as was found in one of the suitcases was foreseen by Presiding Judge Cates in Carbin v. State, 55 Ala.App. 33, 312 So.2d 604, wherein he stated:

'We are not prepared to say that any given quantity of marihuana possessed marks a line between possession for personal use and possession for such other purpose as sale, barter or gift. . . .'

We can well see that it could hardly be reasonably argued that appellant planned to resell any of the remnants of the marihuana in the marihuana suitcase. On the other hand, we can see that it could be reasonably contended that he had recently possessed, and had been a party to the sale of, marihuana of which the gleanings in the suitcase were once a part. The respective contentions of the attorneys for the parties in their arguments to the jury are not shown by the record. Under all the circumstances shown by the record, we are convinced that the jury was justified in finding the defendant guilty of possession of marihuana and that such possession was not for his personal use only.

At the conclusion of the court's oral charge, the following occurred:

'MR. CLEERE: ALL RIGHT. THE DEFENDANT FURTHER OBJECTS TO THE COURT'S ORAL CHARGE TO THE JURY TO THE EFFECT THAT IT WAS NOT NECESSARY FOR THE STATE TO PROVE THAT THE SUITCASE IN QUESTION BELONGED TO THE DEFENDANT, AND FURTHER THAT IF THE DEFENDANT HAD SOME MATTER OF CONTROL OVER THE SUITCASE IN QUESTION, HE WOULD BE IN POSSESSION OF THE SAME. WE OBJECT TO THAT CHARGE AS, IN EFFECT, THE COURT DIRECTING THE JURY'S VERDICT.

'AND ALSO THE FACT THAT THE COURT FAILED TO CHARGE THAT THE STATE DID HAVE A BURDEN TO SHOW GUILTY SCIENTER OR KNOWLEDGE IN THE COMMISSION OF THE OFFENSE AGAINST THE PEACE AND DIGNITY OF THE STATE OF ALABAMA.'

The following excerpt is taken from the court's oral charge:

'Now, Gentlemen of the Jury, marijuana is one of the substances listed in the Alabama Controlled Substances Act, which Act makes it illegal to possess marijuana. As to the amount of marijuana presented in the evidence, that is not necessary--it is not necessary that the State bring into Court or prove possession of any definite amount. Any amount is against the law. So, the amount seized is not in and of itself the determining factor. The factor is whether or not he had possession. It is not necessary for the State to prove that the suitcase belonged to the Defendant, and I shall now define to you some elements of possession and what possession means under the law.

'Possession means having personal charge of a thing,--Or having manucaption of it, having your hands on it, but it is not necessary under the law for a person to have had his hands on something to be in possession of it. If the person exercises some right of ownership or if he exercises some right of control over the suitcase in question, then the Defendant would have been in possession of it. The possession prohibited under the law includes any possession or physical dominion over the marijuana of however brief duration and in whatever capacity the person may have been exercising possession if it be for the use or enjoyment of himself or any other person then--and is not merely for the purpose of inspection or destruction, then that is possession which is prohibited by the law.

'In other words, Gentlemen of the Jury, you look at possession in this light--did the Defendant take the suitcase and did it have marijuana in it and was he holding it and keeping it for some other person and exercising control over it in his bedroom or wherever it was. If he was, he would have had possession of the substance. So, those are definitions of possession which the law prohibits. More than one person can be in possession of a substance at the same time. If it is there and a person is exercising dominion over it and control over it, and he is not keeping it just for destruction or inspection alone, then that is possession which the law prohibits.'

Although the Alabama Rules of Civil Procedure do not apply to criminal cases, Rule 51 thereof, along with Rule 51 F.R.C.P., has wrought a great change in practice of attorneys in endeavoring to bring to the attention of the trial judge what they consider as errors in the court's instructions. In both Rules, the action is denominated 'objection.' Previously in Alabama it was almost uniformly denominated 'exception.' It was said in ...