Burton v. State
Decision Date | 10 November 1994 |
Docket Number | CR-93-1745 |
Citation | 665 So.2d 964 |
Court | Alabama Court of Criminal Appeals |
Parties | Michael BURTON v. STATE. |
John Mark McDaniel and William P. Burgess, Jr., Huntsville, for appellant.
James H. Evans, Atty. Gen., and Steve Willoughby, Asst. Atty. Gen., for appellee.
The appellant, Michael Burton, was convicted of selling cocaine in violation of § 13A-12-211, Code of Alabama 1975. He was sentenced to 15 years in the penitentiary.
The appellant initially contends that the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose a photograph allegedly used by police in identifying the appellant as the person who sold drugs to an undercover police officer.
' '
Powell v. State, 624 So.2d 220, 225 (Ala.Cr.App.1993). See also Ex parte Cammon, 578 So.2d 1089 (Ala.1991); Hall v. State, 625 So.2d 1162 (Ala.Cr.App.1993); Limbaugh v. State, 581 So.2d 5 (Ala.Cr.App.1991).
Investigator Vickie Higgins with the Huntsville Police Department was the undercover officer who allegedly made the "buy" of cocaine from the appellant. She testified that she had a photograph of the appellant but said she was unable to locate it to bring it to court. She testified that another investigator had taken a series of photographs, which included the photograph of the appellant to use in another investigation, but she was unable to locate the photograph. Higgins further testified that she did not believe that a photograph had been used to identify the appellant initially. She testified that she was absolutely positive, without any reference to photographs, that the appellant was the person who had sold her drugs.
The appellant did not prove that any violation of Brady occurred here. He did not show that the photograph was exculpatory, that the prosecutor had suppressed evidence of the photograph, or that the photograph was in any way material to his case.
The appellant next contends that the court erred in denying his motion for a judgment of acquittal. Specifically, the appellant contends that Higgins's testimony was not credible and that, therefore, the jury erred in finding him guilty.
The appellant's contention concerns the weight of the evidence--not the sufficiency of the evidence. Weighing the evidence is within the exclusive province of the jury. Cunningham v. State, 630 So.2d 154 (Ala.Cr.App.1993).
Investigator Higgins testified that the appellant sold her cocaine. This testimony, together with evidence of time and place, presented sufficient evidence of a prima facie case to submit the case to the jury for its determination. The court did not err in denying the appellant's motion for a judgment of acquittal.
The appellant next asserts that the court commented on the evidence, thereby invading the province of the jury, and denying him a fair trial. The record reflects that during deliberations the jury returned with a question. The jury asked the effect of its being unable to reach a unanimous verdict on one count of the indictment. The court answered that the accused would be acquitted of the offense charged in that count if the jury's verdict was not unanimous. The court then made the following statement to the jury:
(Emphasis added.)
The court's comment was a comment on the evidence.
Johnson v. State, 8 Ala.App. 207, 210, 62 So. 328 (1913). See also Rice v. State, 418 So.2d 230, 231 (Ala.Cr.App.1982); Wyman v. State, 47 Ala.App. 643, 259 So.2d 849 (1972); Thornton v. State, 18 Ala.App. 225, 90 So. 66 (1921).
We conclude that the court invaded the province of the jury when it stated that the evidence was identical in both cases, thereby suggesting the outcome of the verdict. However, we find that the appellant was not harmed by the court's error. The harmless error doctrine was defined by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In that case, the United States Supreme Court stated:
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Sanders v. State
...involving a trial court's jury instructions that were found to have invaded the province of the jury. See Burton v. State, 665 So.2d 964, 966-67 (Ala. Crim.App.1994) (although trial court's jury instructions regarding weight of the evidence was found to invade the province of the jury, the ......