Dannelley v. State
| Decision Date | 24 February 1981 |
| Docket Number | 3 Div. 281 |
| Citation | 397 So.2d 555 |
| Parties | Dorothy A. DANNELLEY and John F. Dannelley v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Walter B. Chandler, III and Paul R. Cooper, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Edward E. Carnes and Joseph G. L. Marston, III, Asst. Attys. Gen., for appellee.
This appeal involves convictions based upon eight separate indictments, two of which were joint. All of the cases were consolidated for trial and appeal. Appellant Dorothy A. Dannelley was sentenced to a total of thirty-five years in the penitentiary and appellant John F. Dannelley was sentenced to a total of one hundred and fifteen years in the penitentiary. They each were separately arraigned in the presence of counsel, waived reading the indictments and entered pleas of not guilty and not guilty by reason of insanity. The cases involved the possession of marijuana and child molestation. They had their genesis with the execution of a search.
The affidavit leading to the issuance of the search warrant reads as follows:
Judicial Circuit, Montgomery County, State of Alabama, the undersigned being
first duly sworn deposes and says:
"That he is a law enforcement officer with the State of Alabama, Alcoholic
Beverage Control Board and has been so employed for the past nine years.
"That he has reason to believe, probable cause to believe, and does believe
Marijuana, a controlled substance is being kept, stored, concealed and used
in violation of the Alabama Uniform Controlled Substances Act of 1971 at the
residence of Johnny Frank Dannelly, alias Johnny Dannelley, 6311 Pinebrook
Drive, Montgomery, Montgomery County, Alabama.
"And that the facts tending to establish the foregoing grounds for issuance
of a search warrant are as follows:
Montgomery, Montgomery County, Alabama, within the recent past and while at
this address said informant stated that he had observed Marijuana being used
and sold by a white male known to the informant as Johnny Dannelly.
currency and was taken by Agent Kominitsky to the area of Johnny Dannelly's
residence. Said informant was observed to enter 6311 Pinebrook Drive. Said
informant then returned to Agent Kominitsky with a bag of Marijuana which he
(informant) stated he had purchased from Johnny Dannelly. Said informant also
stated that when he (said informant) left the aforementioned address that
Johnny Dannelly had a quantity of this Marijuana remaining in his possession.
Said informant was searched prior to and after purchasing the marijuana and
at neither time did said informant have any money or drugs, other than the
aforementioned items.
"Based on the above information, I have probable cause to believe cause to
believe and do believe that Marijuana is presently located at 6311 Pinebrook
Drive, Montgomery, Montgomery County, Alabama.
/s/Van Kominitsky s/s H. Mark Kennedy
------------------------ ------------------------
AGENT II 15TH JUDICIAL CIRCUIT"
ALABAMA ALCOHOLIC BEVERAGE
CONTROL BOARD
The search warrant is as follows:
personally appeared ABC Board Enforcement Agent Van Kominitsky who being duly sworn, deposes and says that he has probable cause to believe and does believe that Marijuana, a controlled substance is being kept, stored, concealed and used at the residence of Johnny Frank Dannelley, alias Johnny Dannelley, 6311 Pinebrook Drive, Montgomery, Montgomery County, Alabama.
Appellants filed a pretrial motion to suppress and after a lengthy hearing the motion was denied. (See Appendix.)
Mr. Van Kominitsky testified at the suppression hearing that he was employed by Kominitsky patted down the clothes of the informer and searched the informer's car and did not find marijuana on the informer's person or in the car. He then gave the informer $35.00 in U.S. currency and followed the informer's car to the Dannelley residence. He saw the informer drive to the Dannelley residence and enter the side door. He drove slowly past the residence and returned to a position where he could observe the house. He remained parked for about ten minutes and saw a light come on in the back bedroom, which the informer had previously told him was the Dannelleys' bedroom. From this vantage point the officer observed a shadowy figure pass in front of the curtains on the window of the bedroom and appear to open a chest of drawers. After the lapse of a minute the lights went out and the officer saw the informer come out of the house, get in his car and drive away. The officer followed the informer's car to the prearranged location where the informer handed him a bag of marijuana and told him the bag was purchased from Johnny Dannelley.
the Alabama Alcoholic Beverage Control Board, Enforcement Division, and had been so employed for approximately nine and a half years. He stated he was introduced to an informer about a week before he executed and signed an affidavit before Honorable H. Mark Kennedy, Judge of the District Court of Montgomery County, Alabama, who then issued a search warrant to search the residence of appellant Johnny Frank Dannelley at 6311 Pinebrook Drive in the City and County of Montgomery, Alabama, for marijuana. This was a first time informer and Kominitsky had never previously received information from this informer and did not know the reliability and credibility of the informer. He, therefore, set up a controlled buy with this informer to verify the information furnished him that marijuana was being used and sold at the Dannelley residence. To be certain that the informer knew marijuana when he saw it Kominitsky showed the informer a package of marijuana and the informer immediately recognized the substance.
Appellants called several witnesses, mostly family members, who testified that on the night the controlled buy allegedly occurred Johnny F. Dannelley was not at home.
Having verified the informer's information as being true and correct in all respects the officer made the affidavit upon which the search warrant was issued. On December 1, 1979, at 8:00 a. m., Kominitsky, ABC Agents John Crawford, Larry Williams, and Montgomery County Deputy Sheriff Wayne Ward, executed the search warrant. A search of the house was conducted and a small amount of marijuana was found in a bag, two marijuana cigarettes, pipes containing marijuana residue, and drug paraphernalia.
During the course of the search the officers discovered a plastic file box in a closet in the master bedroom which contained numerous Polaroid pictures of nude children and adults engaged in various sexual activities. The pictures were dumped in a pile on the bed and the officers immediately recognized the minor children of appellants among the photographs on top of the pile. Agent Kominitsky was the evidence officer and Officers Ward and Crawford carried several of the photographs to him. Upon looking at them Kominitsky immediately called the office of the District Attorney and described the photographs and asked if he needed to obtain another warrant to seize the photographs. He was advised by an Assistant District Attorney that no additional warrant was necessary but that he should notify the Youth Aid Division of the Montgomery Police Department. Officers from this Division went to the Dannelley residence to investigate. Officer F. T. Brock confirmed that the photographs depicted various minors, including the Dannelley children, and adults nude and engaging in various sexual relations. The photographs were seized, and the Dannelleys were charged with contributing to the delinquency of a minor.
At the conclusion of the suppression hearing appellants filed motions to waive trial by jury and to exclude the audience. The On the motion to exclude the audience pursuant to Section 12-21-202, 1975 Code of Alabama, the court interrogated both appellants and advised them that under the Constitutions of Alabama and the United States they were entitled to an open and public trial in all cases pending against them. They each responded that they understood their constitutional rights to an open and public trial and voluntarily waived such right. The Dannelleys told the court they did not want their children to testify at an open and public trial, they wanted to spare them further embarrassment and...
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United States v. Reedy, CR-85-224-W.
...reasons, state courts have found that state statutes prohibiting child pornography need not require a commercial purpose. Dannelley v. State, 397 So.2d 555, 568-71 (Ala.Crim.App.), cert. den. 397 So.2d 577 (Ala), cert. den. 454 U.S. 856, 102 S.Ct. 305, 70 L.Ed.2d 151 (1981); People v. Sparg......
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McFadden V. State Of Ala. Appeal From Baldwin Circuit Court (CC-05-1848), CR-07-1923
...Felton, supra (recognizing that a defendant has no constitutional right to possess child pornography in his home); Dannelley v. State, 397 So. 2d 555, 567 (Ala. Crim. App.), writ denied, 397 So. 2d 577 (Ala. 1981), cert, denied, 454 U.S. 856 (1981) (providing that the evil the legislaturein......
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Mcfadden v. State
...Felton, supra (recognizing that a defendant has no constitutional right to possess child pornography in his home); Dannelley v. State, 397 So.2d 555, 567 (Ala.Crim.App.), writ denied, 397 So.2d 577 (Ala.1981), cert. denied, 454 U.S. 856, 102 S.Ct. 305, 70 L.Ed.2d 151 (1981) (providing that ......