Cowart v. State, 1 Div. 663

• Decision Date: 22 January 1985
• Docket Number: 1 Div. 663
• Parties: Jerry Leonard COWART v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 497

488 So.2d 497

Jerry Leonard COWART v. STATE.

1 Div. 663.

Court of Criminal Appeals of Alabama.

Jan. 22, 1985.

On Return to Remand Feb. 12, 1986.

Rehearing Denied April 22, 1986.

Paul D. Brown, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Jean Williams Brown, Asst. Attys. Gen., for appellee.

HARRIS, Judge.

Jerry Leonard Cowart was indicted and convicted for the offenses of possession of marijuana; possession of flurazepam; and possession of a pistol after conviction of a crime of violence. He was sentenced to imprisonment in the Mobile County Jail for six (6) months with a $1000 fine, on the marijuana charge; thirty-five (35) years' imprisonment in the penitentiary with a $2000 fine, on the flurazepam charge; and five (5) years' imprisonment in the penitentiary on the firearms charge.

Teresa Jane Cowart was indicted and convicted for possession of marijuana and possession of flurazepam. She was sentenced to a fine of $5000 and five (5) years' imprisonment on the flurazepam conviction; a fine of $1000 and six (6) months' imprisonment on the marijuana conviction.

On July 14, 1982, Detectives Jeff Stokes, Larry Mote, and Michael Roland placed a residence at 2204 McVay Drive in Mobile, Alabama, under surveillance. At 5:45 p.m. that same day a search warrant was executed. After the detectives identified themselves to appellant, Jerry Leonard Cowart, and informed him of the search warrant for his house, he was handcuffed and allowed to sit in the house. During the search, a codefendant, Teresa Jane Cowart, returned home along with her minor son. Upon Mrs. Cowart's arrival at the residence, both she and Mr. Cowart were advised of their Miranda rights.

The search disclosed two large plastic bags of white pills in the refrigerator; a marijuana pipe, along with two plastic bags of green plant material; a set of triple beam scales with green plant residue on them; an address book; and $2,450 in currency. Three partially-smoked marijuana cigarettes were found in the living room. A .38 caliber pistol and a "roach-clip" were found in the master bedroom. Pursuant to this search, appellants were arrested.

Analysis of the contraband seized at the residence revealed that the green plant material and other items were positive when tested for the presence of tetrahydrocannibinol, the active ingredient in marijuana. The 1601 white tablets were analyzed, and although they were marked as if they were quaaludes, they were obviously counterfeit. After testing and analysis, they were found to contain flurazepam, which is a controlled substance, under Schedule IV, § 20-2-29, Code of Alabama 1975.

On April 4, 1983, the charges against both defendants were consolidated for trial on motion of the State. Willis Holloway was retained as counsel for both defendants. On June 15, 1983, appellant, Jerry Leonard Cowart, was deemed to be indigent and Paul Brown was appointed to represent him while Holloway continued as trial counsel for Teresa Jane Cowart. Teresa Jane Cowart's conviction was affirmed by this court. Cowart v. State, 461 So.2d 21 (Ala.Cr.App.1984).

Appellant's first issue alleges that the trial court committed reversible error by disqualifying Holloway as attorney for Jerry Cowart but not for Teresa Cowart. Appellant alleges that the original attorney should have been disqualified for both defendants and the trial judge should have appointed attorneys for both of them. Appellant mistakenly relies upon Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), for authority.

Holloway, supra, does not stand for the proposition that a new attorney should have been appointed for a co-defendant absent any allegation of a conflict of interest by Teresa Cowart. If a defendant does not object to the adequacy of counsel at trial, only the demonstration of actual conflict of interest will be proof of denial of effective assistance of counsel. United States v. Burroughs, 650 F.2d 595 (5th Cir.), cert. denied, 454 U.S. 1037, 102 S.Ct. 580, 70 L.Ed.2d 483 (1981). Where no actual conflict of interest is shown as a result of joint representation of co-defendants, failure of the trial court to inquire as to possible conflicts inherent in counsel's joint representation does not require reversal. United States v. Alvarez, 696 F.2d 1307 (11th Cir.), cert. denied, 461 U.S. 907, 103 S.Ct. 1878, 76 L.Ed.2d 809 (1983).

Teresa Cowart alleged no conflict of interest at or prior to trial. She made no contention that her continued representation by Holloway constituted any conflict of interest. In the absence of such a contention, no violation of any Sixth Amendment rights resulted from Holloway's serving as Teresa Cowart's attorney. Houston v. State, 401 So.2d 270 (Ala.Cr.App.1981).

Appellant's allegation that the consolidation of these two cases for trial was improper is without merit. It is apparent that the trial court complied with the requirements of A.R.Crim.P.Temp. 15.4. The record indicates that the order granting the State's motion to consolidate was issued following a hearing whereupon appellant's attorney made an objection to the consolidation, which was overruled.

For this court to rule that a trial judge abused his discretion in this matter, an appellant has a heavy burden of establishing that he was unable to obtain a fair trial without a severance and that he suffered compelling prejudice which the trial court could not prevent. United States v. Wilson, 657 F.2d 755 (5th Cir.1981). Appellant has failed to meet this burden and fails to allege how the consolidation has prejudiced him.

Appellant next alleges that the State's use of peremptory challenges to strike a jury for trial was a purposeful, deliberate and systematic means to exclude young black males from the jury, in violation of his constitutional guarantee of trial by an impartial jury. Appellant contends that once the allegation was raised that the State had so used its peremptory challenges, a hearing should have been conducted by the trial court to determine whether the burden of justification could be sustained by the State.

Appellant fails to cite any authority for this proposition, as the great weight of authority does not support his contention. In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), Justice White addressed this issue:

" 'In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it....' " (Emphasis added.)

Swain, supra, at 222, 85 S.Ct. at 837. Appellant's contention is without merit. McCray v. State, 395 So.2d 1057, 1060 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1062 (Ala.1981).

Likewise, appellants' allegation that denial of the request to strike two juries constituted reversible error is wholly without merit. The trial court fully complied with the procedure outlined in A.R.Crim.P.Temp Appellant alleges that the use of a special docket violated his right to a trial by an impartial jury and his guarantee of due process. Appellant alleges that this was a "crash docket" to clear a backlog of criminal cases. Appellant contends that this created a "carnival" atmosphere and that jurors were repeatedly used for criminal trials so that they became "programmed to render guilty verdicts as a matter of course." The record is silent as to this situation and, contrary to appellant's assertion, does not contain the voir dire examination of the jury venire, so there is no evidence to substantiate any of appellant's claims.

15.4(h). There was no error for the trial court to deny appellant's motion for a mistrial on this point. Lewis v. State, 469 So.2d 1291 (Ala.Cr.App.1984); Holsemback v. State, 443 So.2d 1371 (Ala.Cr.App.1983).

The matter of placing cases on the docket for trial is largely within the discretion of the trial judge, and in the absence of a showing of an abuse in the discretion by the trial court, this court should not disturb the trial court's ruling. Wilson v. State, 395 So.2d 1116 (Ala.Cr.App.1981); Childers v. State, 389 So.2d 193 (Ala.Cr.App.1980). Additionally, on this issue, appellant fails to argue or state any supporting legal authority, and has cited this court to events that are not reflected in the record. According to A.R.A.P. 45B, this court is not obligated to consider questions or issues not presented in briefs on appeal. Mere allegations without proper argument and legal authority are deemed waived. Vinzant v. State, 462 So.2d 1037 (Ala.Cr.App.1984).

Appellant alleges that he was denied use of a law library and access to law materials pending trial, and that such denial abrogated his constitutional right to adequate, effective, and meaningful access to the courts as expressed in Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). Appellant clearly misreads the law on this issue. The requirement is that adequate law libraries or adequate assistance from persons trained in the law must be provided. Bounds, supra, at 828, 97 S.Ct. at 1498. Appellant does not allege that he was ever inadequately represented by counsel, and, in fact, he was at all times represented by a court-appointed attorney. Further, an examination of the record reveals that appellant was incarcerated in the federal penitentiary...