Chatom v. State

• Decision Date: 16 May 1978
• Docket Number: 1 Div. 798
• Citation: 360 So.2d 1068
• Parties: Jere Levon CHATOM v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1068

360 So.2d 1068

Jere Levon CHATOM v. STATE.

1 Div. 798.

Court of Criminal Appeals of Alabama.

May 16, 1978.

Rehearing Denied June 20, 1978.

Michael Scheuermann, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellant was indicted and convicted for the offense of possession of marijuana. After a trial at which the appellant was represented by two court appointed attorneys, the jury found him guilty and imposed a fine of $5,000.00. In addition the trial judge sentenced the appellant to fifteen years' imprisonment.

On the afternoon of November 17, 1975, about three hundred law enforcement officers were searching for the appellant in the western section of Mobile, Alabama. The appellant and his companion were being sought for the murder of two deputy sheriffs. See Chatom v. State, Ala.Cr.App., 348 So.2d 828, judgment reversed, Ala., 348 So.2d 838, on remand, Ala.Cr.App., 348 So.2d 843 (1976). That same afternoon the appellant was apprehended by officers of the Pascagoula, Mississippi, Police Department and turned over to the Mobile County Sheriff's Office. He was then placed under arrest in Alabama and taken to the Mobile County Jail.

At the jail the appellant was searched and in his pocket was found a plastic bag containing marijuana. The bag contained approximately one-fifth to one-tenth of an average size "lid" and was enough to roll five or six average size cigarettes. This was about five or six dollars worth of marijuana.

The appellant presented no evidence to contradict that presented by the state. His only witness, a deputy for the Mobile County Sheriff's Office, testified that it was his understanding that the appellant was arrested in Mississippi by Mississippi authorities and brought back into the State of Alabama.

I

Initially the appellant contends that it was error for the trial judge to allow the District Attorney to choose, on the morning of the trial, which of four cases would be tried, after granting defense counsel's motion requiring an election.

For clarity, the operative facts must be detailed. Defense counsel was appointed to represent the appellant on four cases: three receiving and concealing stolen property cases which were "similar" and one charge of possession of marijuana. On September 8, 1976, defense counsel filed a Motion to Elect requesting that

"your Honor order that the district attorney will elect which case he will try on September 15, 1976 (trial date), and that your Honor will further order that the district attorney so inform the defendant."

This motion was heard on September 14, 1976, the day before the scheduled trial date. The trial judge granted this request and ordered the state to elect between either the three receiving stolen property cases or the drug case before noon of that same date.

On September 15, 1976, the appellant's trial was continued and reset by agreement of both parties, defense counsel having filed a "Motion for Change of Venue and/or Continuance". The appellant was finally tried on February 28, 1977.

Immediately before trial defense counsel represented to the trial court that they had never been told which case the District Attorney was going to try although the court had granted their motion to elect and they had requested that information from the District Attorney.

The trial judge found that the appellant had been last scheduled for trial on November 1, 1976, but that the case had been continued. The judge stated that if the District Attorney had not complied with his order, defense counsel should have filed another motion.

We know of no rule of law or practice which requires the District Attorney to give defense counsel advance notice of the order in which separate indictments against an accused will be prosecuted.

"In the absence of statutory regulation otherwise, it is within the discretion of the trial court, or of the prosecuting attorney, subject to the control of the court, to determine the order in which cases shall be tried, where separate trials are granted on a joint indictment, or where different indictments or counts against the same person are tried separately, or where different defendants are separately indicted, and the court's exercise of discretion will be upheld in the absence of abuse." 23 C.J.S. Criminal Law § 932, at pp. 694-695.

Under the circumstances of this case the appellant is not entitled to a new trial because of the failure or refusal of the District Attorney to inform him of which case would be tried first. The motion, though filed seven days before trial, was set down for hearing and actually heard only the day before trial. The record contains no objection by defense counsel to this procedure. As a practical matter we fail to see how a motion to elect, the very purpose of which is to afford the defendant and his attorneys time for preparation on a specific charge, will benefit counsel when granted the day before trial. In this posture, the function of the motion is frustrated by the late determination.

Additionally, the motion itself specifies that the District Attorney inform defense counsel of which case would be tried on September 15th. Trial was not had on that date but was continued and the motion was not refiled or amended. Under these circumstances there was no court order requiring the District Attorney to inform the appellant of which case would be tried on February 28, 1977.

The trial judge stated and his manner indicated that he was favorable toward requiring the prosecution to elect. Despite this, the court was not informed of the prosecution's failure to elect until the day of trial. Though defense counsel complained of the failure of the state to elect no relief was requested and the trial court was not requested to take any specific action.

Finally it must be noted that the appellant has shown no prejudice by the state's failure and the rulings of the trial court. If the failure of the state to inform an accused, facing separate indictments, of the order in which they will be tried is to work a reversal, it can only do so where a proper and timely request has been made by defense counsel and the failure to inform or elect results in actual prejudice to the accused.

II

It is asserted that it was error for the trial judge to refuse the appellant's requested charges directing the jury that they could not find him guilty of felonious possession of marijuana. The appellant contends that

"based on the overall consideration of amount and lack of any evidence to the contrary, . . . the jury had no basis in fact on which to convict the appellant of felonious possession."

The basis of this assignment of error was considered in Roberts v. State, Ala.Cr.App., 349 So.2d 89, 92-93, cert. denied, Ala., 349 So.2d 94 (1977). There, after some discussion of the controlling principles, we concluded:

"The statute prohibits the possession of any amount of marijuana. The burden is upon the accused to show that the amount possessed, however large or small it may be, is for personal use only. The state is not required to prove that the marijuana is possessed for the purpose of sale under an indictment charging, as here, mere possession. Title 22, Section 258(47)." Roberts, supra, at 349 So.2d 93.

In this case there was no evidence presented by either the prosecution or the appellant on the issue of the use of the marijuana involved. Since the degree of possession whether felony or misdemeanor, depends upon the use of marijuana and not the quantity involved, and since the state need not prove that the marijuana was possessed for purpose of sale, the trial court was not in error in failing to give the requested instructions.

III

The appellant also assigns three arguments of the District Attorney as constituting reversible error.

A.

In the opening statement to the jury the prosecutor made the following comment:

"We expect the evidence to go along this line that back on November 17, 1975, Detective Larry Tillman, Detective Albert Stroh, in the western part of Mobile County, in participation of one of the biggest manhunts this county has ever seen "

The trial judge sustained the objection of defense counsel and instructed the jury to exclude the statement of the "massive manhunt" from their consideration. The trial judge also found that defense counsel, in his argument, had "brought out a matter along the same line you are objecting to".

Under these circumstances, the action of the trial court cured any possible error in the prosecution's retaliatory remarks. 6A Alabama Digest, Criminal Law, k730(1), 730(16).

B.

In closing argument the prosecutor stated:

"I don't have to tell you that the number one problem in our Country is the drug problem."

The trial court overruled defense counsel's objection. We find this to be within the range of permissible references to the frequency of offenses and properly an appeal for law enforcement. Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968); 6A Alabama Digest, Criminal Law k723(3).

The prosecutor continued:

"Thank you, Judge, I will start over. I don't have to tell you that the number one problem in our Country today is the drug problem. You can look at our Court docket and see it, not only minor cases, but most of the crimes you see today, you can point right back to drugs."

The trial judge sustained defense counsel's objection to that argument. Defense counsel made no motion to instruct the jury, no motion to strike or exclude and no request for a mistrial. He has no adverse ruling from which to appeal. The action of the trial court is not error. Wilburn v. State, 41 Ala.App. 681, 149 So.2d 296 (1963); Elliott v. State, 19 Ala.App. 263, 97 So. 115 (1923). In view of the action of the trial judge, we need not determine whether the statements by the prosecutor were a proper reference to the character of the offense and appeal to law enforcement.

C.

The appellant...