Cassell v. State
| Decision Date | 29 July 1975 |
| Docket Number | 8 Div. 631 |
| Citation | 317 So.2d 348,55 Ala.App. 502 |
| Parties | Wayne CASSELL, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
James L. Hunt, Tuscumbia, for appellant.
William J. Baxley, Atty. Gen., and William A. Golinsky, Asst. Atty. Gen., for the State, appellee.
The indictment in this cause (omitting formal parts) is as follows:
'Circuit Court, February Term, 1974
'The Grand Jury of said County charge that before the finding of this Indictment, Wayne Cassell, alias, Buford Wayne Cassell, whose name is otherwise unknown to the Grand Jury that as stated, did, on to-wit: November 10, 1973, illegally possess seventeen (17) tablets containing Methaqualone, contrary to the provisions of the Alabama Controlled Substances Act, the same being Act No. 1407 of the Regular Session of the Alabama Legislature, 1971, said possession of said Methaqualone being subsequent to September 16, 1971, the effective date of said Act, and subsequent to September 13, 1973, the date Methaqualone was put under control by the Board of Health of the State of Alabama, as authorized by Title 22, Section 258, 26--38, Code of Alabama, 1940, as last amended, against the peace and dignity of the State of Alabama.'
To this indictment, the appellant filed both a motion to quash and a demurrer, each in substance raising the constitutionality of the regulation of the State Board of Health adopted at a meeting on September 19, 1973, and published on September 30, 1973, by the Board of Health in the Birmingham News and Post-Herald, which placed the drug 'Methaqualone' on the controlled substances list pursuant to the provisions of Title 22, Sections 258(26), 258(30), and 258(38), Code of Alabama 1940, as amended 1971. This motion and demurrer were overruled at trial.
The appellant filed a motion to suppress, which was also overruled, and following a trial by jury, on August 16, 1974, the appellant was found guilty, as charged, and the discretion to impose a fine was left to the trial court, by the verdict. On October 17, 1974, the appellant's request for probation was denied, and the appellant was sentenced to two years imprisonment. Thereafter, the appellant filed a motion for new trial, which was duly heard and overruled.
Just prior to trial, the District Attorney, Mr. McCutchen, presented a duly certified copy of the regulation of the State Board of Health, adopted September 19, 1973, and published on September 30, 1973, to the trial court as evidence in the cause. This was received after the overruling of the appellant's motion to quash and demurrer raising the constitutionality of this regulation. The regulation and minutes in question are as follows:
'I, Dr. Ira L. Myers, State Health Officer, certify that in conformity with Title 22, Section 258 (26--38), Code of Alabama 1940, as amended into Alabama law during the Regular Session of 1971, the State Board of Health, at its regular meeting of September 19, 1973, placed Methaqualone (including its salts and derivatives and other drugs of this group manufactured under various trade names) in Schedule IIN (non-narcotic). I further certify that this action is reflected in the minutes of the Board meeting of that date (September 19, 1973). (A copy of the minutes of the Board is attached.)
'The control of Methaqualone was effective on September 30, 1973 (date of publication).
'S/ Ira L. Meyers
Ira L. Meyers, M.D.
'The State Health Officer called attention to a number of letters that have been received since March, 1973. Many letters have been received in the past week urging the inclusion of Methaqualone as a controlled substance. Earlier requests resulted in a recommendation to Federal authorities that this should be placed under Federal control which would automatically bring it under State control. The widespread abuse of this drug indicates that urgent action is needed on the part of the State. Its actual potential for abuse has been demonstrated. Its pharmacological effects are listed in reference documents available to the medical profession and in current medical literature. Scientific knowledge has accumulated documenting the history and current pattern of abuse. The significance of this abuse has been noted by numerous agencies, concerned citizens, and law enforcement officials. Its disturbing psychic effects indicate it is a risk to public health and it is a sedative-hypnotic agent chemically unrelated to the other sedative-hypnotics. Precautions for this drug note the possibility of use of this drug in suicide attempts and adverse reactions include a variety of neuro-psychiatric symptoms. In the light of these urgent complaints and requests and in accord with the provisions of the Code of Alabama 1940, as amended, Title 22, Section 258(26--38), the State Health Officer recommended this drug be placed in Schedule II--N. Conversation with Federal authorities indicates this is a classification being considered by them for future action. It was moved by Dr. Strandell, seconded by Dr. Yohn, that Methaqualone, its salts and derivities, be placed in Controlled Substances Schedule II--N and that it be published; the motion carried unanimously.
'The above is a true extract copy of the Minutes of the State Committee of Public Health of September 19, 1973.
'S/ Ira L. Meyers M.D.
Ira L. Meyers, M.D.
State Health Officer'
Just prior to trial, a hearing was held on appellant's motion to suppress the seizure of a bottle of pills seized from the appellant at the time of his arrest, November 10, 1973, at Ballew's Truck Stop and Restaurant in Muscle Shoals, Alabama. At the hearing on the motion to suppress, the State presented the testimony of Muscle Shoals Police Officer Robert Hall, who testified that he, Lt. Bill Parrish, and Lt. George Boatwright, of the Muscle Shoals Police Department, were asked to answer a call, about 8:00 in the evening, on November 10, 1973, to go to Ballew's Truck Stop. He testified that, in response to the police radio call, he arrived on the scene about the same time as the other police vehicle, and that Lt. Parrish spoke to a man operating the service station at this place. Officer Hall stated that he spoke to the waitress who made a complaint to him and pointed to a booth in which the appellant, Wayne Cassell and one Ricky Parker were seated. He stated that he approached the booth, appellant started to get up, staggered, and sat back down, that he got up again and staggered, that he walked up to him and immediately smelled alcohol on his breath. He stated that he spoke to the appellant, who mumbled, and asked him if he had been drinking, to which the appellant replied, 'Yes I have.' He stated that at this point, in his opinion, the appellant was under the influence of alcohol to the point of being publicly drunk, that he then advised the appellant that he was under arrest and asked the appellant how much he had been drinking. He stated that the appellant mumbled some words and reached his hand into the front pocket of his jacket. He stated that as the appellant did this, he grabbed his wrist and pulled his hand back out of his pocket, and as he did so, there was revealed in the appellant's hand a bottle of pills. He stated that Lt. Boatwright walked up as this occurred.
The appellant's motion to suppress was overruled.
The State presented the testimony of Lt. Bill Parrish of the Muscle Shoals Police Department, who testified that in response to a police radio call, he drove to Ballew's Truck Stop and Restaurant on November 10, 1973. He testified that the call came from the Police Department dispatcher over his police radio. He stated that he stopped to speak to the service station attendant upon arrival, and that Sgt. Hall, who accompanied him, proceeded into the restaurant. He stated that in a few minutes Lt. Boatwright arrived, and that the two of them then followed Sgt. Hall into the restaurant. He testified that one of the waitresses advised him that they had been having trouble with the appellant and his companion, Mr. Parker, and when they approached the table, Ricky Parker attempted to stand and fell back into his seat, slumping over. He stated that the appellant attempted to stand, slumped back into his chair, and then got up a second time, that he was swaying and staggering, and that he smelled alcohol on his breath. He stated that the appellant's speech was slurred, and that there were women and other customers present in the restaurant at the time the appellant and his companion were placed under arrest for drunkenness. He stated that this occurred within the city limits of Muscle Shoals in Colbert County, Alabama.
Lt. George Boatwright testified that he was an officer employed by the Muscle Shoals Police Department on November 10, 1973. In response to a police radio call, he drove his vehicle to Ballew's Truck Stop and Restaurant, and upon arrival noticed that a police vehicle in which Lt. Parrish and Sgt. Hall were riding had just pulled in. He stated that Lt. Parrish spoke to the man who operated the service station, that a lady came outside and told them that a couple of men inside the restaurant had been throwing food, that she pointed to the table where the appellant, Wayne Cassell, and his companion, Ricky Parker, were seated. He stated that he walked to the table, and as he did so, he saw the appellant put his hand into his coat pocket, that Sgt. Hall grabbed appellant's wrist. He observed Sgt. Hall pull the appellant's hand from his jacket pocket, and as he did so, a bottle of pills were observed in appellant's hand. He testified that he opened the bottle, and that it contained seventeen pills. He stated that the appellant's speech was slurred, and that he detected alcohol on his breath, that his eyes were bloodshot and red, and that the appellant had been drinking 'a good bit.'
Sgt. Robert Hall...
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