Darby v. State

• Citation: 516 So.2d 775
• Decision Date: 22 October 1985
• Docket Number: 8 Div. 181
• Parties: Arthur Edward DARBY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 775

516 So.2d 775

Arthur Edward DARBY v. STATE.

8 Div. 181.

Court of Criminal Appeals of Alabama.

Oct. 22, 1985.

Rehearing Denied May 27, 1986.

William N. Clark and Douglas H. Scofield of Redden, Mills & Clark, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Alexander Webb, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Arthur Edward Darby was separately indicted for unlawfully selling cocaine and for trafficking in cocaine. He was found guilty by a jury on both counts and was subsequently sentenced under the Habitual Felony Offender Act to 21 years on the trafficking charge and 10 years on the selling charge. The sentences were ordered to run consecutively. In addition, the appellant was fined $50,000 on the trafficking count and $10,000 on the selling charge.

Darby's arrest resulted from a joint undercover operation of the Alabama Bureau of Investigation and the Sheffield Police Department. One Walter Barner agreed to cooperate with the authorities in exchange for their promise not to prosecute him in connection with an automobile theft case, and he was the buyer of the cocaine.

The appellant and Barner had formulated a plan to defraud an insurance company by reporting as stolen a 1982 Lincoln Continental automobile, supposedly owned by Barner. In fact, Barner never actually owned the automobile; the appellant had transferred legal title in the automobile to Barner so that he could obtain insurance on the car, but he never paid Darby anything for the vehicle. According to the plan, Barner was to report the automobile as stolen, file a claim with the insurance company, and then split the proceeds with the appellant. The scheme fell apart, however, when A.B.I. agent B.A. Richardson discovered that the vehicle had not actually been stolen. Under questioning by Richardson, Barner confessed that the whole story had been fabricated to obtain the insurance money.

Barner then offered to help the authorities prove a drug case against Darby, the appellant here, if no action would be brought against him in the automobile case. A.B.I. Agent Brown testified that when informed of Barner's offer, he felt it unnecessary to verify accusations that Darby was a drug dealer because he knew Darby's reputation in the community for selling illegal narcotics. Pursuant to the agreement, Barner subsequently arranged to purchase cocaine from appellant Darby.

On February 3, 1984, Barner telephoned Darby to find out where to meet Darby to buy the cocaine. Darby did not suggest a meeting place at that time, but told Barner to telephone his paging service later that day and he would call him back to let Barner know where the transaction would occur. During this conversation, which was recorded by Barner, drugs were not specifically discussed. After making the phone call, Barner drove to the Sheffield Police Station to notify the authorities that the sale would occur soon.

At the police station, officers conducted a search of Barner and attached a transmitter to his chest so that they could hear and record any conversation that occurred during the drug transaction. Barner was instructed to use the code phrase, "here's the money," after he had purchased the drugs so that the agents could move in for the arrest. At this time, police officers also searched Barner's automobile for contraband.

After being given $1,900 with which to make the purchase, Barner left the police After hanging up, Barner returned to his car, and followed by Richardson and Aycock, drove to a nearby service station. Barner talked with Richardson for a moment, then drove to the lounge to meet the appellant. Agent Richardson followed on foot, concealing himself so that he could see into the parking lot of the lounge without himself being detected.

station to telephone Darby. Followed by Agent Richardson and Officer Aycock, Barner drove to a telephone booth where he, with Agent Richardson standing beside him, attempted to use the telephone but found that it was out of service. The two men returned to their respective cars and drove to another phone booth in front of a Zippy Mart store. Again, with Richardson standing beside him, Barner telephoned the appellant's paging service and gave it the number of the phone booth outside the Zippy Mart. Shortly thereafter, Barner received a telephone call from the appellant. Darby told Barner to meet him at the Southern Touch Lounge, which was located across the street from where Barner was calling. Agent Richardson, fearing that the appellant was already at the lounge and might see him, ran back to his own car to avoid being seen.

Barner got out of his car and walked up to the door of the lounge, peered through the window to see if Darby was inside, and seeing no one, returned to his car to wait for him. A moment later, Darby arrived, parked his car, and got into Barner's automobile.

Barner testified that the two talked for a few minutes about the insurance fraud scheme before he purchased from the appellant a green package containing cocaine. The transcript of the conversation, parts of which were unintelligible, reveal that the two men did discuss matters relating to the automobile swindle for several minutes, but there was no intelligible part of the conversation in which cocaine was specifically mentioned. Moreover, the portions of the conversation immediately preceeding the time that Barner handed the money to the appellant were especially unintelligible.

Agent Brown and Officer Jones, who had arrived at the scene a few minutes before the appellant, were carefully monitoring the conversation. Brown, upon hearing the prearranged phrase, "here's the money," radioed Agent Richardson that the sale had occurred. With his pistol drawn, Richardson walked up to the car and ordered the two men out of the vehicle. Richardson "patted down" Darby for weapons, handcuffed him, and then put him in the back seat of the police car. While this was occuring, Officer Aycock searched Barner and found a green bag containing white powder in Barner's pocket. Once the preliminary search was completed, both Barner and Darby were taken to the state trooper's officer in Muscle Shoals.

Upon arriving at the station, Agent Brown informed the appellant of his rights and conducted a thorough inventory search. A total of $12,000 was found in the appellant's pockets. During the search the appellant removed his jacket and placed it on a nearby chair. When the jacket was later searched, an additional $1,900 in cash was discovered. An envelope containing white powder was also found in the coat pocket, as well as a brown glass vial containing white powder, a 35-millimeter film canister containing white powder, and an implement commonly known as a "coke spoon." A later analysis of these substances by state criminalist Joseph Wallace revealed that the white powder was cocaine.

I

The appellant first challenges the sufficiency of the indictment for trafficking. Specifically, he contends that because the indictment merely charged him with knowingly possessing "28 grams or more of cocaine," without specifying the exact amount of cocaine, he was alleged to have had in his possession, the indictment was unconstitutionally vague. The statute under which the appellant was indicted, § 20-2-80(2), Code of Alabama 1975, provides:

"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, described in Section 20-2-25(1), is guilty of a felony, which felony shall be known as 'trafficking in cocaine,' If the quantity involved:

a. Is 28 grams or more, but less than 200 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of three calendar years and to pay a fine of $50,000.00.

b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of $100,000.00.

c. Is 400 grams or more, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fine of $250,000.00."

"The function of the indictment is to inform the accused of the crime with which he is charged, so that he may prepare a defense if one is available." Ex Parte Washington, 448 So.2d 404, 407 (Ala.1984). This court has previously held that "an indictment which follows the language of a statute is sufficient to apprise the appellant of the charges against him, and to allow him to prepare a defense." Copeland v. State, 455 So.2d 951, 956 (Ala.Cr.App.), cert. denied, 455 So.2d 956 (1984). The appellant argues that in this instance, however, the indictment did not sufficiently track the statute, because it failed to specify the exact quantity of cocaine he was alleged to have had in his possession. He bases his argument on the fact that the trafficking statute is divided into three subsections, the second and third allowing a greater fine and term of imprisonment as the quantity of the controlled substance possessed increases. We find this argument unpersuasive.

"An indictment must contain the elements of the offense charged." Hardy v. State, 409 So.2d 996, 1001 (Ala.Cr.App.1982). (Emphasis supplied.) The legislature has defined the offense of trafficking in cocaine as possession of "28 grams or more of cocaine or of any mixture containing cocaine." § 20-2-80(2), Code of Alabama 1975. Subparagraphs (a), (b), and (c) are not "elements of the offense," but rather relate to minimum sentencing requirements to be used in the event that the accused is found guilty of trafficking in cocaine. We find, therefore, that the indictment charging the appellant with knowingly possessing 28 grams or more of cocaine, or a mixture thereof, was sufficient.

The appellant also contends that, because neither the jury verdict nor the indictment specified the exact amount...