Chesteen v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: HARRIS
• Citation: Chesteen v. State, 365 So.2d 102 (Ala. Crim. App. 1978)
• Decision Date: 04 April 1978
• Docket Number: 8 Div. 952
• Parties: Joseph Lucian CHESTEEN v. STATE.

Page 102

365 So.2d 102

Joseph Lucian CHESTEEN v. STATE.

8 Div. 952.

Court of Criminal Appeals of Alabama.

April 4, 1978.

Rehearing Denied May 2, 1978.

John D. Clement, Jr. and Henry H. Self, Jr., Tuscumbia, for appellant.

William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

Appellant was convicted of violating the Alabama Uniform Controlled Substances Act, Title 22, Section 258(47), 1973 Cumulative Supplement. Omitting the formal parts the indictment reads as follows:

"The Grand Jury of said County charge that before the finding of this Indictment Joseph Lucian Chesteen, alias Joseph L. Chesteen, alias Luke Chesteen, whose name is otherwise unknown to the Grand Jury than as stated, did sell, furnish or give away, Phentermine, a controlled substance contrary to the provisions of the Alabama Controlled Substances Act, against the peace and dignity of the State of Alabama."

Throughout the trial proceedings appellant was represented by retained counsel and at arraignment pleaded not guilty. The jury returned a verdict of guilty and assessed a fine of Fifteen Thousand Dollars against him. As additional punishment the Court sentenced appellant to seven years imprisonment in the penitentiary.

The evidence is circumstantial and extremely conflicting in many respects. The jury encountered considerable difficulty in reaching a verdict. This case grew out of an occurrence at the Tuscumbia Drug Store on the afternoon of May 28, 1976, after one Harold Hatton was observed leaving the drugstore with a white paper bag in his hand.

The Sheriff of Colbert County, John L. Aldridge, testified that at approximately 4:15 p. m. on May 28, 1976, he ordered the Tuscumbia Drug Store staked out. The Sheriff and his Chief Deputy, Doug Aycock, in separate automobiles, took up positions near the drugstore. While so positioned they saw Hatton leave the front entrance of the drugstore and enter a Lincoln Continental around 5:15 p. m. which started moving away. Aycock pulled in behind the car occupied by Hatton and the Sheriff pulled in behind Aycock. The Lincoln Continental was stopped about one and a half blocks from the drugstore. The Sheriff walked to the passenger side of the stopped car and directed Hatton to get out. When Hatton opened the car door the Sheriff saw a white paper sack lying on the floorboard of the car. This sack contained two bottles which were labeled "Ionamin", a trade name for the drug "Phentermine." The bottles were full of yellow capsules. Hatton and his driver were placed under arrest. Hatton was searched by another Deputy Sheriff in the presence of the Sheriff. The search yielded two smaller bottles which also contained yellow capsules. A short time later the Sheriff ordered appellant arrested.

Doug Aycock testified that he was Chief Deputy for the Colbert County Sheriff's Office. He stated that at Aldridge's instruction he set up a stakeout of Tuscumbia Drug Store. At 5:20 p. m., Aycock saw Hatton enter the drugstore. Hatton was empty handed at that time. When Hatton left the store, he carried a white paper sack. Hatton got in a Lincoln Continental and drove off, with Aycock following. The Lincoln was being driven by Rod Hamby. Aycock was present at the time that Aldridge recovered the sack containing the Ionamin and when Hatton was searched. Aycock then went to Tuscumbia Drug with Deputy May. Appellant, John Lawson, and Vicki Moultrie were in the store. May read appellant and Lawson their rights from a Miranda card. Appellant stated that he understood and agreed to talk to the deputies. Aycock then asked which of them had waited on Hatton. Appellant replied that he did. Aycock shortly thereafter placed appellant under arrest. Subsequently, an audit was conducted of appellant's drugs on hand at the store. Aycock and Victor E. McClellan, an agent with the Diversion Investigation Unit of the Alabama Department of Public Safety, spoke with the appellant after he was again informed of his Miranda rights. McClellan asked if he could explain a shortage of Ionamin capsules. Appellant replied, "I can't."

Millard Conley testified that he was employed by the Colbert County Sheriff's Office. On May 28, 1977, he participated in a stakeout of Tuscumbia Drug Store. In response to a radio dispatch, Conley left his position and drove down 6th Street East where he discovered Hatton, Hamby, Aldridge, and Aycock standing next to a Lincoln Continental. Conley read Hatton and Hamby their Miranda warnings and also searched Hatton. He recovered two plastic bottles in the left front pocket of Hatton's trousers. Conley carried these bottles and the bottles recovered by Aldridge to the toxicology laboratory in Florence, Alabama.

Vickie Moultrie testified that she was employed at Tuscumbia Drug Store. On May 28, 1977, she saw Hatton enter the store. Hatton came in the store two or three times a month. He was empty handed when he entered the store. Hatton remained there thirty to forty-five minutes. She saw Hatton talking to appellant in the store. Subsequently, Moultrie saw Hatton carrying a white paper sack when he left the store.

Elaine Scott testified that she had been employed by the Alabama Department of Toxicology for three years. Scott received a B.S. degree in laboratory technology from Auburn University and was working on a Master's Degree from the University of Alabama in Criminal Justice. Scott further stated that she had completed approximately a thousand drug identifications during the course of her work, including training at the Drug Enforcement Agency of the Federal Government's Forensic Chemist Seminar.

Scott further testified that Conley turned over to her two small bottles containing 50 capsules, each bearing an imprint of 18-904, and two large glass bottles, labeled Ionamin 30, containing yellow capsules imprinted with 18-904. Each of the large bottles contained 400 capsules. She also received a white paper sack. Scott made an identification of the contents of all four bottles, by a Micro Chemical Color Test. Scott found that these capsules contained phentermine, a controlled substance in Alabama.

Scott also removed prints from these bottles and forwarded them to the Alabama Bureau of Fingerprint Investigation. These prints were not identified as appellant's.

John Lawson testified that he was a pharmacist at Tuscumbia Drugs from June, 1973, to September, 1976. Lawson saw Hatton in the drugstore on May 28, 1976, between 4:30 p. m. and 5:00 p. m. Hatton was talking with the appellant. Lawson further testified that Hatton came in the store two to three times a week, with appellant usually waiting on him. Lawson never filled a prescription for Hatton. Lawson stated that Ionamin was kept on the prescription shelves and also in the rear of the store. He had ordered Ionamin for the store on occasions. He never filled a prescription for Ionamin for Hatton. Neither did he give Hatton any Ionamin. On May 28, 1976, Lawson did not see appellant hand anything to Hatton. Nor did he see Hatton leave the store carrying anything.

Lawson testified that there was a padlocked stainless steel cabinet in the back of the store. Only appellant had the combination to this lock.

Victor E. McClellan testified that he was employed by the Alabama Bureau of Investigation and attached to the Diversion Investigation Unit. This unit is a specialized narcotics unit whose purpose is to insure compliance with the Alabama Controlled Substances Act. On May 29, 1976, he, D.I.U. Agent Bill Sanders, and Deputy Ronny May of the Colbert County Sheriff's Office went to Tuscumbia Drug Store, where an audit of Ionamin capsules was conducted. This audit concerned 15 milligram and 30 milligram Ionamin capsules. An inventory conducted on July 20, 1975, showed 180 Ionamin 15 milligram and no Ionamin 30 milligram present in the store. On May 29, 1976, 186 Ionamin 15 milligram and 4,032 Ionamin milligram 30 capsules were in stock. Appellant's purchase books showed that between July 20, 1975 and May 29, 1976, 180 Ionamin 15 milligram and 22,400 Ionamin 30 milligram were bought. A check of appellant's distribution files revealed that only 146 Ionamin 15 and 760 Ionamin 30 had been legally distributed, leaving a shortage of 17,608 Ionamin 30 capsules during that period from July 20, 1975 and May 29, 1976, for which appellant could give absolutely no explanation. He told the officer there had been no burglary of his store in three or four years.

On cross-examination, McClellan stated that the 1975 inventory was done by John Lawson. However, Lawson was not questioned concerning the shortage. McClellan stated that Lawson was not questioned because both appellant and Lawson told him that appellant was in charge of the store.

Appellant testified that he had owned and operated Tuscumbia Drug since 1964. He stated that Lawson ordered and checked in most of the drugs at the store. Controlled drugs were kept in a stainless steel cabinet in the rear of the store. Appellant testified that this was not always locked.

On May 28, 1976, appellant testified that he waited on Harold Hatton at the counter. Hatton was checking on some sunglasses appellant had ordered for him. Appellant told Hatton that he had not gotten them in yet. This ended the conversation. Appellant stated he then went into his office. Appellant denied selling or giving Hatton any drugs. Appellant also testified that he was the only person who had the combination to the steel cabinet in which the controlled drugs were kept.

Fred Hovater, Jr., testified that he was a pharmacist at Medical Plaza Pharmacy in Muscle Shoals, Alabama. Hovater knew appellant and had gone to college with him. He testified that appellant's general reputation and his reputation for truth and veracity were good. Hovater would believe appellant under oath. On cross-examination Hovater testified that normally 1,000 to 1,200 Ionamin were prescribed in a drugstore a...