Chevere v. State

• Decision Date: 21 August 1992
• Docket Number: CR-90-1919
• Parties: Ignacio Jose CHEVERE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 361

607 So.2d 361

Ignacio Jose CHEVERE v. STATE.

CR-90-1919.

Court of Criminal Appeals of Alabama.

Aug. 21, 1992.

Rehearing Denied Sept. 30, 1992.

Certiorari Denied Nov. 20, 1992

Alabama Supreme Court 1920056.

William R. Blanchard, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Margaret Childers, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Ignacio Jose Chevere, was convicted of trafficking in cocaine and was sentenced to 30 years in prison.

The state's evidence tended to show that on September 15, 1987, Officer Mary Gay of the Montgomery Police Department and her partner, Officer Greg Barnett set up surveillance of the residence of David Clark based on a tip from a confidential informant. The informant told the officers that David Clark was to receive a large quantity of contraband drugs. An automobile with a Florida license tag, driven by a Cuban nicknamed "Nacho," would go to the Clark's residence, the informant said, bringing the narcotics.

At approximately 11:00 p.m. on the evening of September 15, 1987, Officer Gay saw a car matching the description given by the informant in front of Clark's residence. Gay and her partner radioed for other police officers to watch the house so that they could obtain a search warrant for the premises. In the meantime, the appellant had driven away in his vehicle and was stopped several miles from Clark's residence.

When Officer Gay returned, she and her partner went to the door and knocked. They then informed David Clark that they had a search warrant. Clark thereupon took them to a bedroom where he opened his dresser drawer and showed them that he had approximately two ounces of cocaine and a quantity of marijuana therein.

The search of the appellant's vehicle uncovered a loaded .38 caliber revolver that was found in the back floorboard of the vehicle. The appellant also had $1,190 in cash on his person. The appellant was arrested on the evening of September 15, 1987, for a weapons violation.

There was further evidence that the appellant was staying at a Holiday Inn motel with another individual, Robert Case, who drove with him from Lake Wales, Florida. Case testified that during the night of September 15, 1987, he was asleep in his motel room when police entered the room to search the area. As a result of the search, marijuana was recovered, which Case said was not his. Case did say that he and the appellant before leaving Florida did "do some cocaine." However, Case did not know how much cocaine the appellant had in his possession.

Telephone records from the Holiday Inn where Chevere stayed showed that the Clark's residence was called at 10:44 p.m. from the room registered in the appellant's name. Case testified that he made no telephone calls from the motel room.

The record does not reflect that David Clark was arrested or that any charges were made against him at this time. Neither does the record reflect any arrest or any charges filed against the appellant at this time for the trafficking offense. The appellant was originally arrested for possession of a pistol on the evening of the discovery of the marijuana and cocaine. This charge was ultimately dropped and the appellant was charged with possession of the marijuana found in his motel room. He was indicted for possession of marijuana in 1987 but the charge was subsequently nol-prossed in November 1987. No further charges relating to the events which occurred on September 15, 1987, were brought against the appellant and Clark until they were both indicted for trafficking in cocaine in August 1990.

Clark was a witness for the prosecution at the appellant's trial. He testified that he had bought the cocaine on the evening of September 15, 1987, from the appellant. He said that he had paid the appellant between $1,000 and $1,400 for the cocaine and that he had spoken to the appellant on the telephone before the appellant came to his house to deliver the drugs. Clark further testified that in return for his testimony in this case, he would not be charged with trafficking in cocaine but would plead guilty to the lesser included offense of possession of cocaine. He also testified that his deal with the authorities included the provision that his wife, Diane Clark, would not be charged with trafficking in the cocaine.

The defense called former police officer Barnett to testify in the appellant's behalf at trial. Barnett's testimony conformed to that of his former partner Officer Gay. Barnett was also cross-examined about his being forced to resign from the police department in 1990 after an internal investigation revealed that he and several of his co-workers took money intended to be used for informants and the purchase of drugs during sting operations. See Bertarelli v. State, 585 So.2d 212 (Ala.Cr.App.1991).

A suppression hearing to dismiss the indictment and suppress the items recovered from the appellant's vehicle was held prior to trial. The appellant maintained at the suppression hearing that the indictment should be dismissed because he was not indicted for the offense until three years after it had occurred. At the suppression hearing Montgomery Mayor Emory Folmar; Chief of the Montgomery Police Department John Wilson; and local attorney George Azar, testified.

Mayor Folmar testified that at the time of the offense in 1987, he was in charge of the police department. He had received a call from George Azar, who stated that his nephew, David Clark, had made a deal with the arresting officer and had satisfied his part of the deal but that the police were still harassing him. Mayor Folmar stated that as a result of his conversation with Azar he called Police Chief Wilson and asked if he would check into this matter and see if any agreement that Clark had with the police had been violated. Folmar further stated that he did not follow up with Chief Wilson about what had happened.

Chief Wilson stated that in 1987, Mayor Folmar did call and ask him to check into Clark's deal with the police. He also asserted that he did not know that Azar and Clark were related. Chief Wilson, as a result of the conversation with the Mayor, called Captain Bodine, who told him that it was his understanding that Clark had not satisfied his part of the agreement with the police and that the police should proceed with formal charges against him. There appeared to have been a misunderstanding about just what Clark was supposed to do for the police in exchange for a plea to a lesser charge. Chief Wilson told Captain Bodine not to pursue the case until the "confusion" could be resolved.

In April 1990, Chief Wilson brought the Clark and Chevere case to the attention of the district attorney's office. The case was later submitted to the grand jury and Clark and the appellant were indicted in August 1990. Clark did not go to trial as a result of a plea to the lesser charge of possession of cocaine. The appellant was tried in August 1990 for trafficking in cocaine.

I

The appellant contends that there was insufficient evidence to find him guilty of the charged offense. A person is guilty of trafficking in cocaine if he violates § 13A-12-231, Code of Alabama 1975. ¹ This section state, in pertinent part:

"(2) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine ... is guilty of a felony, which felony shall be known as 'trafficking in cocaine.' "

Under the above statute, a defendant may be found guilty of trafficking in cocaine if he is not in "actual" possession of the controlled substance at the time of arrest. Mathis v. State, 594 So.2d 690 (Ala.Cr.App.1991). An individual may be convicted of trafficking in cocaine if he participated in the sale, such as acting as an agent for the procurer and the buyer. Haywood v. State, 562 So.2d 297 (Ala.Cr.App.1990). An individual may also be guilty of trafficking in cocaine if he manufactured, delivered, or brought into the state, 28 grams or more of any mixture containing cocaine. § 13A-12-231, Code of Alabama.

The court must view the evidence in the light most favorable to the state. Colvette v. State, 568 So.2d 319 (Ala.Cr.App.1991). The facts as stated above established sufficient evidence to present the case to the jury for its determination.

The appellant also argues that there was insufficient evidence of his guilt without the testimony of David Clark, who was his accomplice. There is no question in this case that Clark was the appellant's accomplice. In fact, he was charged with the same offense.

"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

Section 12-21-222, Code of Alabama 1975. (Emphasis added.)

" 'The test for determining the sufficiency of the corroborative evidence of the testimony of an accomplice is through a "subtraction process." The test is generally stated:

" ' "First, the evidence of the accomplice must be eliminated, and then, if upon examination of all other evidence, there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration." '

"McCoy v. State, 397 So.2d at 585 [ (Ala.Cr.App.), cert. denied, 397 So.2d 589 (Ala.1981) ] (citations omitted, emphasis in original).

" '[C]orroborative evidence need not refer to any statement or fact testified to by the accomplice. Neither must it be strong nor sufficient of itself to support a conviction. The probative value of the evidence need only legitimately tend to connect the accused with the crime and need not directly do so. Further, corroborative evidence need not directly confirm...