Cabble v. State

• Decision Date: 03 May 1977
• Docket Number: 3 Div. 573
• Citation: Cabble v. State, 347 So.2d 546 (Ala. Crim. App. 1977)
• Parties: Ernest L. CABBLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 546

347 So.2d 546

Ernest L. CABBLE v.STATE.

3 Div. 573.

Court of Criminal Appeals of Alabama.

May 3, 1977.

Rehearing Denied May 24, 1977.

Michael A. Sundock, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.

LEIGH, M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of possessing heroin in violation of the Alabama Uniform Controlled Substances Act, now contained in Code of Alabama, 1971 Cum.PocketPart, Tit. 22, §§ 258(25)-258(60).His punishment was fixed by the court at twelve years imprisonment in the penitentiary.

Appellant insists on reversible error in three particulars: (1) the severity of the sentence, (2) the overruling by the trial court of defendant's motion to quash the search warrant, and (3) asserted insufficiency of the evidence to sustain a conviction.

As disposed as we might be to more lenient sentences than are sometimes imposed in "controlled" substances cases, we also are "controlled" by principles of law that prevent the substitution of our own measure of appropriate punishment for those provided by the legislature and imposed by trial courts.To this, however, appellant's answer is that the imprisonment for twelve years constitutes cruel and unusual punishment, in violation of the Eighth Amendment of the Constitution of the United States and Section 15 of the Constitution of Alabama of 1901.To this, we respond in the language of the opinion in Smith v. United States, 273 F.2d 462, 467-468, (10th Cir.1959), involving offenses under the "Marijuana and Narcotics Statutes," resulting in consecutive sentences for a total term of fifty-two years and fines totaling thirty thousand dollars:

"It has been said that if the prescribed penalty appears to be too harsh, 'the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction.'Blockburger v. United States, supra(234 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306).In Hayes v. United States, 238 F.2d 318, 322, certiorari denied, 353 U.S. 983, 77 S.Ct. 1280, 1 L.Ed.2d 1142, this court said:

" 'The fixing of penalties for crimes is a Congressional function, and what constitutes adequate punishment is ordinarily left to the discretion of the trial judge.If the sentence is within the statutory limit, appellate courts will not interfere unless clearly cruel and unusual.'

"The subject, including the applicability of Section 2106. (28 U.S.C.A. § 2106, providing that Federal appellate courts'may remand the cause and direct the entry of such appropriate judgment . . . as may be just under the circumstances'), was considered in United States v. Rosenberg, 2 Cir., 195 F.2d 583, 604, certiorari denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652, 687, where it was stated:

" ' * * * "If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute. "Gurera v. United States, 8 Cir., 40 F.2d 338, 340.'

"In the Gore case(Gore v. U. S., 357 U.S. 386, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405), where the court considered sentences identical to those in the case at bar without mentioning Section 2106, the opinion concluded with this statement:

" 'In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment.Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, seeRadzinowicz, A History of English Criminal Law: The Movement for Reform, 1750-1833, passim, these are peculiarly questions of legislative policy.Equally so are the much mooted problems relating to the power of the judiciary to review sentences.First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them.See7 Edw. VII, c. 23, § 4(3);16 & 17 Geo. V., c. 15, § 2(4).This Court has no such power.'

"Generally the courts have held that a sentence within the limitations of a valid statute is not 'cruel and unusual' punishment.United States v. Rosenberg, supra, and cases cited;Edwards v. United States, 10 Cir., 206 F.2d 855;Hemans v. United States, 6 Cir., 163 F.2d 228, certiorari denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380;United States v. Sorcey, 7 Cir., 151 F.2d 899, certiorari denied, 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021;Ginsberg v. United States, 5 Cir., 96 F.2d 433;Jackson v. United States, 9 Cir., 102 F. 473.

"This court has used language which might indicate that appellate courts have power to interfere if a sentence is 'clearly cruel and unusual,' but it has never done so.Hayes v. United States, supra;Richards v. United States, 10 Cir., 193 F.2d 554, certiorari denied, Krupnick v. U. S., 343 U.S. 930, 72 S.Ct. 764, 96 L.Ed. 1340;Schultz v. Zerbst, 10 Cir., 73 F.2d 668.In Moore v. Aderhold, 10 Cir., 108 F.2d 729, 732, we said: 'where the sentence imposed is within the limits prescribed by the statute for the offense committed, it ordinarily will not be regarded as cruel and unusual.'See alsoEdwards v. United States, supra."

Reliance is had upon Smith, supra, in the midst of a multitude of other cited cases, for the emphasis supplied portion of the following statement:

"In some jurisdictions it is held that punishment within the limits fixed by statute is not excessive, and ordinarily does not constitute cruel or unusual punishment within the meaning of constitutional restrictions, unless the punishment fixed by the statute is cruel and degrading punishment, not known to the common law . . . ."24B C.J.S.Criminal Law § 1984.

The punishment provided by Code of Alabama, 1971 Cum.PocketPart, § 258(47), for the possession of heroin, as well as for other criminal conduct with reference to it, is not less than two nor more than fifteen years imprisonment and, in addition, there may be a fine not to exceed twenty-five thousand dollars.In a recent case under the Alabama Controlled Substances Act, we continued to apply the principle established in Alabama, without exception, that where a sentence is within statutory limits, appellate courts do not have revisory power as to the discretion of the trial court in fixing the sentence.Moore v. State, 54 Ala.App. 463, 309 So.2d 500.Notwithstanding the necessity for our ruling as we do, we think it should be stated that, although it appears that defendant had never been previously convicted of a felony and that the conviction here was for possession, not for a sale, the amount of heroin involved, valued at approximately twenty-five hundred dollars, speaks for itself as to defendant's involvement in narcotics and the seriousness of the crime for which he was tried and convicted.

Evidence for the State, as shown by testimony of Detective Richard E. Koerner of the Montgomery Police Department, a narcotics officer, corroborated by Detective Edward H. Munson as to material matters within his knowledge, was that the two officers, accompanied by two other officers, about seven A.M. December 15, 1975, entered Apartment 6-A, 2000Girard Street, Montgomery, with a warrant to search said premises for heroin and drug paraphernalia.Detective Koerner had obtained the warrant December 11.He had made a detailed affidavit, setting forth that he had been advised by three informants that defendant was in possession of a quantity of heroin and that the informant had observed a quantity of heroin at the apartment searched.In his testimony, Detective Koerner said that he knew defendant, had had him under surveillance, though not a continuous surveillance, for about two weeks, and had observed him going to and coming from the particular apartment on several occasions; he had seen defendant there the night before the search was made.He provided the judge who issued the search warrant with information that defendant was known to the witness as a drug abuser in the past and that the witness had been informed by two separate sources that they had seen defendant in possession of heroin and by a third source of information that defendant was selling heroin.

After knocking on the door for a while and receiving no response, the officers forced an entry.Defendant and the woman resident of the apartment were in bed together.On the dresser in the bedroom was a bag of marijuana, in plain view, according to both detectives, and as to which there is no dispute in the evidence.Defendant and the woman were informed that they were under arrest for the possession of marijuana.Defendant had on his trousers while in the bed; he was ordered by Detective Koerner to put his hands on the wall, and Detective Koerner proceeded to "pat his pants down."There was a bulge in his right pocket, which Detective Koerner entered and "pulled out twenty-two bags of heroin.The heroin was contained in glassine envelopes.

Appellant contends that there was an invalid search and seizure.He sets forth his reasons for such contention as hereinafter considered.

Although the warrant did not contain the name of defendant or the name of the occupier of the apartment, the affidavit upon which the warrant was based named the defendant as the person in possession of the heroin for which the search was made.In general, it is better that a search warrant contain the name of the owner or occupier of the premises to be searched, but there is no constitutional requirement that it do so....