Carmichael v. State
| Decision Date | 03 October 1972 |
| Docket Number | 8 Div. 267 |
| Parties | Warren CARMICHAEL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
No brief for appellant.
William J. Baxley, Atty. Gen., and Samuel L. Adams, Asst. Atty. Gen., for the State.
The May 1971 Term of the Grand Jury of Madison County, Alabama, charged the appellant with the unlawful sale of Marijuana.
The Jury found the appellant guilty, and the trial court entered judgment which fixed punishment at ten years and six months imprisonment. 1
Police Officer Jerry Max Birmingham testified that he had been a narcotics undercover agent with the Huntsville Police Department for more than one year, and, on the night of April 9, 1971, he went to 4300-C Boxwood Drive, University Apartments, in Madison County, Alabama. At this apartment he was introduced to the appellant, Warren Carmichael, of whom he inquired, 'Do you have anything for sale?' The appellant replied, 'he had three lids of Marijuana that he wanted to get rid of.' At this time the officer purchased one lid of Marijuana for $25.00 and made an agreement to take the other two lids and pay the appellant for them at a later date. Officer Birmingham kept this Marijuana in his possession in a sealed envelope until June 23, 1971, as he had been working undercover, and on this date turned the envelope over to Officer Randall Duck of the Criminal Intelligence Unit of the Huntsville Police Department, who, in turn, delivered it to the State Toxicologist's office. Officer Duck testified that the bag was sealed, and that he did not open it.
John H. Kilbourn testified that he was a Criminal Laboratory Technician with the Alabama Department of Toxicology and Criminal Investigation and did examine the envelope in question and its contents, and that the contents in fact were Marijuana.
The appellant, at the close of the State's case, made a motion to exclude, and requested the affirmative charge, which were denied.
The appellant testified that he was a student at Alabama A & M University, and, while he lived in the same University Apartments area testified to by Officer Birmingham, that he had never seen Officer Birmingham, did not sell him any Marijuana, or go to the apartment in question, and denied ever having sold Marijuana to anyone; that his wife was employed as a teacher in the Huntsville school system. The appellant put on a number of character witnesses in his behalf.
During the direct examination of Officer Birmingham, the appellant objected to the officer stating an opinion as to whether or not the substance purchased was Marijuana. The testimony showed that Officer Birmingham had been a criminal undercover agent for approximately one year and had opportunity to observe, smell, and examine Marijuana on some 'forty or more' occasions. The trial court permitted him to state that the substance purchased from the appellant was Marijuana.
We believe the opinion herein expressed by Officer Birmingham falls within the purview of the rule set forth in Gast v. State, 232 Ala. 307, 167 So. 554, wherein the court stated:
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Bracewell v. State, 4 Div. 981
...sound discretion of the trial court, whose rulings will not be disturbed absent a clear abuse of that discretion. Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538 (1972); Carroll v. State, 370 So.2d 749, 760 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979); Jolly v. State, 395 So.2d......
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Barnett v. State
...testimony presented in behalf of appellant, and that of an undercover police agent, present a question for the jury, Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538, and as such was a proper basis for the trial court to overrule appellant's motion to exclude, and for a directed verdict.......
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Reynolds v. State
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