Carpenter v. State, 6 Div. 65
| Decision Date | 22 January 1980 |
| Docket Number | 6 Div. 65 |
| Citation | 380 So.2d 368 |
| Parties | Robert CARPENTER, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John A. Bivens, of England & Bivens, Tuscaloosa, for appellant.
Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
A jury found this appellant "guilty of unlawfully selling, furnishing, or giving away marijuana" as charged in an indictment and fixed "a fine of $5,000 as punishment," to which additional punishment of imprisonment for four years was imposed by the trial court. The punishment was within the range of the fine and imprisonment prescribed by Code of Alabama 1975, § 20-2-70.
By his counsel appointed to represent him on appeal by reason of his indigency, appellant makes a strong argument challenging the sufficiency of the evidence to withstand defendant's motion for a new trial, which the trial court overruled. Appellant lays stress upon the fact that there was no corroboration of the testimony of an undercover narcotic agent for the Alabama Beverage Control Board that on October 12, 1978, he paid defendant ten dollars for a packet of substance that an expert witness testified was marijuana. He argues that the nature of the agent's work and the compensation that he is paid therefor preclude his classification as a disinterested witness. In addition, appellant urges that defendant's testimony, supported to some extent by other witnesses, that he was not present at the time and place the undercover agent testified the sale occurred, outweighs testimony of the undercover agent. Without denigrating the contention of appellant, we must answer by stating that an appellate court should not override the determination by the trial court as to the weight of the evidence in a case unless it clearly appears that the verdict is palpably wrong or unjust. Colvin v. State, 39 Ala.App. 355, 102 So.2d 911 (1958); Barker v. State, 55 Ala.App. 332, 315 So.2d 129, cert. denied 294 Ala. 752, 315 So.2d 130 (1975); Smith v. State, Ala.Cr.App., 342 So.2d 422 (1977). The verdict of the jury was within its province. The action of the trial court in overruling defendant's motion for a new trial was within the range of the discretion vested in the trial court and did not constitute error.
While the undercover agent was testifying as to the identity of the person who sold him marijuana, defendant requested a hearing out of the presence of the jury, which was granted, and defendant then endeavored to show that there had been a pretrial identification by the witness of the defendant, which defendant contended was an improper lineup that tainted his in-court identification and that the witness should not have been allowed to testify in court as to who the person was who sold him the controlled substance. Appellant now presents the same contention. It is to be noted, however, that the hearing out of the presence of the jury did not show a lineup, or any conduct that would have had the effect of an improper lineup. Pertinent parts of the testimony of the undercover agent on the hearing out of the presence of the jury were as follows:
After the undercover agent had testified, he was recalled by defendant for further cross-examination, and during the further cross-examination he was again interrogated as to his pretrial identification of defendant. He testified as follows:
The record does not disclose...
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Frazier v. State, 6 Div. 999
...were therefore reliable and independent of the pre-trial identification procedures." Miller, supra at 590. See also Carpenter v. State, 380 So.2d 368 (Ala.Crim.App.1980). Furthermore, both witnesses were able to give accurate descriptions of the thief prior to the pre-trial photo line-ups a......
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Phillips v. State
...confrontation, the identification has an independent source. Cartee v. State, 390 So.2d 1121 (Ala.Cr.App.1980); Carpenter v. State, 380 So.2d 368 (Ala.Cr.App.1980); Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 "Whether an in-court identification has been ......
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Hutchinson v. State, 6 Div. 954
...lineup. Phillips v. State, 409 So.2d 918 (Ala.Cr.App.1981); Cartee v. State, 390 So.2d 1121 (Ala.Cr.App.1980); Carpenter v. State, 380 So.2d 368 (Ala.Cr.App.1980); Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1979); Oakley v. State, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 ......
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Oakley v. State
...lineup. Phillips v. State, 409 So.2d 918 (Ala.Crim.App.1981). Cartee v. State, 390 So.2d 1121 (Ala.Crim.App.1980); Carpenter v. State, 380 So.2d 368 (Ala.Crim.App.1980); Brazell v. State, 369 So.2d 25 (Ala.Crim.App.1978), cert. denied, 369 So.2d 31 (Ala.1979). Sheree's mere assertion that h......