Cooks v. State, 5 Div. 239

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TYSON
• Citation: 317 So.2d 506,55 Ala.App. 538
• Docket Number: 5 Div. 239
• Decision Date: 17 June 1975
• Parties: Doris COOKS, alias v. STATE.

Page 506

317 So.2d 506 55 Ala.App. 538 Doris COOKS, alias
v.
STATE. 5 Div. 239. Court of Criminal Appeals of Alabama. June 17, 1975.

[55 Ala.App. 539] Arnold W. Umbach, Jr., Opelika, for appellant.

William J. Baxley, Atty. Gen. and Richard F. Calhoun, Sp. Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

Following the remandment of this cause for a hearing with counsel on the merits of the appellant's Youthful Offender Petition, the trial court then proceeded in accordance with the mandate of this court, and has sent this court a return to the remand, showing full compliance. After full investigation by the probation officer, and a hearing on the merits of the appellant's petition, the trial court, after considering the appellant's prior record, including two convictions of petty larceny, and one for sale of marihuana, entered the following findings:

'The Court is of the opinion that this defendant is not and was not entitled to trial under the Youthful Offender Act.'

It should be noted, however, that since the answer to the remandment, the Alabama Supreme Court has modified the effect of Morgan v. State, 291 Ala. 764, 287 So.2d 914, by holding that referral to a probation officer is no longer mandatory. The trial courts may now make or order such investigation as they deem necessary, and then hold an examination, and then make a determination whether or not to accord youthful offender treatment to an accused. Clemmons v. State, 1975, 294 Ala. ---, 321 So.2d 238.

We will now review the merits of this appeal. Taylor Noggle testified that he had been employed as a State Toxicologist with the State of Alabama Department of Toxicology and Criminal Investigation at Auburn for the past two years. Noggle testified to his qualifications and to the fact that over the past two years he had tested for marihuana 'several thousand times.' Noggle stated that on Monday, April 10, 1972, while employed as State Toxicologist, Deputy Watkins delivered some evidence to him, and one of the items was a brown manila envelope. Neggle testified that in the envelope he found a clear plastic bag, which contained a green-brown vegetable matter. Neggle further testified that upon examination, he determined the vegetable matter to be Cannabis Sativa L., which is commonly known as 'marihuana.'

Ronnie Watkins testified that he was an investigator with the Lee County Sheriff's Department, and was

Page 506

so employed in February, March, April, and May of 1972. Watkins testified that he came to know Alex C. Smith, in February of 1972 when Smith applied for a job as a deputy sheriff with the Lee County Sheriff's Department. Smith was sworn in as a deputy sheriff on March 14, 1972. Watkins stated that Smith was to work directly under him as an undercover agent, with his primary purpose to be the purchase of illicit or contraband drugs. Watkins testified that Smith was paid his expenses and received some compensation, but that it was not carried on the payroll, but was paid out of a special fund that is authorized by the Probate Judge and used at the Sheriff's discretion. Watkins stated that Smith was paid on the time he was employed, the time he put into the job, not as to the number of cases, or defendants. He was still on the force as of the time of trial.

Watkins stated that during this period he knew one Michael Watson. Watkins testified that Watson had been arrested and convicted for the sale of L.S.D., and had thereafter expressed a desire to work as an informer for the Lee County Sheriff's Department, which he did. Watson was to introduce Deputy Smith in traffic in drugs, and in general, act as a go-between for the people on the street and Deputy Smith. Watkins testified that Mr. Smith was working in an official capacity, duly authorized and commissioned by the Lee County Sheriff's Department. He had all the powers of arrest. Watkins stated that Mickey Watson was an informant, that he had not powers of arrest, and was not given any authority by the Sheriff of Lee County.

[55 Ala.App. 541] Watkins testified that on or about April 3, 1972, in connection with an investigation into one Doris Cooks, he and Sheriff Pearson

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met Watson and Deputy Smith behind Mount Olive Church, which is on Lee County 43, on Society Hill Road, South of Opelika, in distance some two or three miles. They met behind the church in the graveyard in the daytime. Watkins stated that he and Sheriff Pearson got into the undercover vehicle with Smith and Watson, at which time undercover Deputy Smith turned over a white business-type envelope that bore the initials 'A.C.S.' over the seals. After returning to the office, Watkins opened the envelope, removed a small cellophane plastic bag, which contained a substance, placed it in a brown manila envelope, marked it for identification purposes, and delivered it to the Toxicologist.

On cross-examination, Watkins testified that Smith had received no formal training in police work, but that he had received instructions from the Sheriff's Department as to the proper procedure for handling evidence, drug traffic, and the proper way to make a purchase, or make a buy, from an individual. Watkins stated that Smith was also instructed as to what he could and could not do as a police officer, or as a deputy sheriff, along the lines of entrapment; that if he purchased narcotics from a violator, it had to be something that the violator wanted to do, and he could not entice the violator to sell to him. Watkins testified that the cost of the total investigation, the undercover investigation, was a little better than $1800.00, and ran for a period of about seventeen weeks.

On redirect, Mr. Watkins testified that of the $1800.00, $600.00 was used to purchase narcotics; $300.00 was spent for meals for Mr. Smith and informants; approximately $400.00 was spent for gas, oil, and operation of three...