Daniels v. State
Decision Date | 29 June 1982 |
Docket Number | 1 Div. 378 |
Citation | 416 So.2d 760 |
Parties | Oscar DANIELS v. STATE. |
Court | Alabama Court of Criminal Appeals |
Roosevelt Simmons, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted for the unlawful possession of Pentazocine, Alabama Code 1975, Section 20-2-70, and for possession of a pistol after having been convicted of a crime of violence. Code Section 13A-11-72 (Amended 1977). He was sentenced as an habitual offender to life imprisonment.
The defendant argues that remarks made by the trial judge to the jury encouraging them to reach a verdict were coercive and were made outside the presence of defendant's counsel.
The specific remarks the defendant finds objectionable are:
These remarks represent a portion of the judge's instructions to the jury. These particular instructions were given after the jury had been deliberating for an unidentified portion of one day, had been allowed to separate for the night, and were ready to begin their deliberations the next morning.
Examining the judge's supplemental charge in the "whole context of its setting", we find that it is not coercive or threatening. Orr v. State, 40 Ala.App. 45, 54, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959). "No error is committed in supplemental instructions, including the 'Allen' or 'dynamite' charge, unless it is threatening or coercive in the language used." Lake v. State, 390 So.2d 1088, 1092 (Ala.Cr.App.), cert. denied, 390 So.2d 1093 (Ala.1980).
After the jury had returned its verdict and been dismissed, defense counsel made the following objection:
The trial judge denied this motion.
In a written "motion for a mistrial" defense counsel alleged "(t)hat after the jury had deliberated for approximately three (3) hours, certain remarks were made to the jury outside the presence of defendant's counsel and such remarks were prejudicial to the rights of the defendant." This allegation of error was not presented in the defendant's written motion for new trial. However, in arguing that motion defense counsel did "move for a new trial that certain remarks we(re) made to the jury outside, prejudicial to the rights of the defendant ..."
"No communication, whatever, should take place between the judge and the jury after the cause has been submitted to them, unless in open Court with all the parties and their attorneys present." Donahoo v. State, 371 So.2d 75, 78-9 (Ala.Cr.App.), cert. denied, Ex parte Donahoo, 371 So.2d 79 (Ala.1979).
There is nothing in the record, apart from the objections and motions of defense counsel, to support the defendant's allegation of error. "Assertions of counsel in an unverified motion for new trial are bare allegations and cannot be considered as evidence or proof of the facts alleged." Smith v. State, 364 So.2d 1, 14 (Ala.Cr.App.1978). "A motion for a new trial must be heard and determined on the evidence submitted on that motion and on the evidence heard on the main trial, though not reintroduced." Taylor v. State, 222 Ala. 140, 141, 131 So. 236 (1930). So far as this record discloses, no proof was offered in support of the motions for new trial or mistrial. Therefore, they were properly overruled. Crawford v. State, 48 Ala.App. 325, 264 So.2d 554, cert. denied, 288 Ala. 686, 264 So.2d 559 (1972); Walters v. State, 30 Ala.App. 547, 9 So.2d 32 (1942); Hart v. State, 28 Ala.App. 545, 190 So. 95, cert. denied, 238 Ala. 188, 190 So. 98 (1939). See also White v. State, 33 Ala.App. 92, 30 So.2d 466, cert. denied, 249 Ala. 158, 30 So.2d 468; Summers v. State, 19 Ala.App. 556, 99 So. 48 (1924). Since there is nothing in the record to show that the trial judge abused his discretion in refusing to declare a mistrial or grant a new trial, the action of the judge must be upheld.
The defendant contends that he was subected to an illegal arrest, search and seizure.
On the afternoon of March 22, 1981, Prichard Police Officer Perry Hollins stopped the defendant for driving with an expired license tag. He asked to see the defendant's driver's license and the defendant told him that he did not have a license. Officer Hollins then told the defendant that he "would have to place him under arrest for driving a vehicle without license, also, for having an expired tag on the car." Hollins asked the defendant to get out of the car. As the defendant was opening the door, Officer Hollins noticed the handle of a pistol "sticking up out" of the console between the front seats of the automobile. The officer read the defendant a portion of his Miranda rights and had him get out of the car.
When Officer Hollins reached for the pistol he noticed an aspirin bottle on the floor under the driver's seat of the automobile. Officer Hollins testified:
At trial Officer Hollins testified that, after the defendant told him that he did not have a permit for the pistol, he On cross examination of Hollins by defense counsel, the following occurred:
The trial judge found that there was a lawful search and seizure incident to a lawful arrest apparently relying on New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
In New York v. Belton, the Supreme Court of the United States held:
In Belton, the court defined "container":
Belton, 101 S.Ct. at 2864, n. 4.
Belton established a "bright line" to guide the actions of law enforcement officers. "The new rule provides that police may search the 'passenger compartment' of an automobile, and any containers found there, incident to an arrest of someone who occupied the automobile just prior to the arrest." Comment, Robbins v. California, 453...
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