Dial v. State

• Decision Date: 20 November 1979
• Docket Number: 2 Div. 245
• Parties: Jake M. DIAL v. STATE
• Court: Alabama Court of Criminal Appeals

Page 871

387 So.2d 871

Jake M. DIAL v. STATE

2 Div. 245.

Court of Criminal Appeals of Alabama.

Nov. 20, 1979.

Rehearing Denied Dec. 18, 1979.

James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, and David A. Reid, Livingston, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., Montgomery, for appellee.

HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

"The Grand Jury of said County charge that before the finding of this indictment Jake M. Dial, whose name is otherwise unknown to the grand jury, did after September 16, 1971, unlawfully possess, sell, furnish or give away to-wit: Marijuana, a controlled substance, against the peace and dignity of the State of Alabama."

Throughout the trial proceedings appellant was represented by counsel of his choice and at arraignment pleaded not guilty. The jury returned a verdict finding him guilty as charged in the indictment and fixed his fine at ten thousand dollars. As additional punishment the trial judge sentenced appellant to ten years imprisonment in the penitentiary. In open court appellant gave notice of appeal. Appellant is represented by new counsel on this appeal.

Prior to trial appellant filed the following motions: (1) motion for discovery and inspection; (2) change of venue; (3) demurrer or motion to dismiss the indictment, and motion for continuance. The court denied the motion to dismiss the indictment, and denied the motion for a continuance after a hearing. The court granted the motion for discovery and ordered the District Attorney to permit defense counsel to withdraw a sample of the marijuana for testing. The court also directed the District Attorney to encourage all State's witnesses to talk with the defense counsel.

Seven witnesses actually testified at the hearing on the motion for change of venue and expressed the opinion that, based upon pretrial publicity by newspaper accounts, television broadcasts, radio reports, and discussions in the county, appellant could not receive a fair and impartial trial in Sumter County, or that it would be very difficult for him to receive such a trial. It was stipulated that eight additional witnesses would testify in like manner. The court expressly reserved ruling on the motion for change of venue until a voir dire examination of the jury venire was conducted.

After the jury was sworn and qualified the voir dire examination began. Several of the veniremen testified they had heard the case discussed and had heard and read the news accounts, including television and radio reports, but said they could disregard what they had heard and read and render a fair and impartial verdict. Some veniremen had not read the newspaper accounts or heard the case mentioned on television or radio. Not a single juror stated that he or she was biased and prejudiced by what he or she had heard or read. The trial court then overruled the motion for change of venue.

Appellant did not testify nor did he offer any evidence in his behalf concerning the merits of the State's case. The case presented by the State was undisputed.

On September 9, 1978, the Sheriff of Sumter County, Melvin Stephens, accompanied several narcotics agents and the investigator from the District Attorney's Office for the purpose of burning a field of growing marijuana. The Sheriff testified that this particular field was in Sumter County and was located in a pasture about a mile to a mile and a half from County Road 74. The field was three and a half to four acres in size. The field was planted in rows with plants that were seven to eight feet tall. About an acre and a half of the field had been previously harvested. The remaining acreage was destroyed by burning the plants after they were pulled up and stacked. According to the Sheriff this land belonged to appellant.

After burning the marijuana the Sheriff saw appellant at his horse barn which was located about two miles from this field of marijuana. The horse barn was off Highway 74 on a dirt road to the left before you get to appellant's residence. The Sheriff, Lieutenant Bradford and Chief Moody had a conversation with appellant in which they told him they had just burned a marijuana field on his place and they had reason to believe he had some more marijuana, and, if he did, it was time to show it to them. Appellant told the officers he didn't know anything about it and the Sheriff did not ask him any more questions.

Later that night the Sheriff and Deputy Walton went back on Highway 74 near appellant's house. The Sheriff called appellant's home and learned that he was not there. They then went to the home of Edward Morris (a co-defendant) and learned that he had gone with appellant to do some work. The time was about 10:30 p. m. The Sheriff knew that appellant had an interest in the Cobb house located in the area. They drove to the old Cobb place and parked behind an abandoned store. Just before they parked they heard a noise and crawled up behind the house and from this vantage point they saw a truck. They moved closer and observed two people loading something on the truck in large paper bags. The officers got within fifty feet of the truck which the Sheriff described as a "brown Chevrolet truck, flat bed; the bed was approximately eight foot long and six foot wide, with a clearance light, a yellow clearance light on top of the cab." The Sheriff identified the persons loading the bags on the truck as appellant and Edward Morris. When the Sheriff first saw appellant and Morris they were coming in the direction of the old Cobb house and down to the parked truck.

The officers observed appellant and Morris until the truck was loaded and started driving away. As the truck was moving the right front tire went flat. Appellant and Morris got out and changed the tire. They put the flat tire on the bed of the truck, turned on the clearance lights and drove back across the flat pasture headed in a northern direction from the old Cobb house. The Sheriff then radioed Investigator Billingsly of the District Attorney's Office and instructed him to get on the road which he knew would come out behind the pasture. The Sheriff got in his car and started to the road at the back of the pasture. While en route he got a radio call from Mr. Billingsly saying that he had spotted the truck. The Sheriff got to Mr. Billingsly who informed him that he had lost sight of the truck as it came out of the gap. It was near midnight when the truck was first missed. The Sheriff called all law enforcement officers on duty but they were not able to find the truck until around 6:30 a. m. on September 10, 1978.

The Sheriff further testified that in driving around the pasture he came to a pine thicket and noticed some large bags in the woods. He drove around the pine thicket and found the truck in some bushes. The bags were stashed about 150 yards from the truck. The Sheriff stated this was the same truck which he had seen at the old Cobb house the night before. On the bed of the truck he found a flat tire. He inspected the truck and found green vegetable material on the truck. There were fifteen garbage size paper bags found in the pasture and they were filled with green vegetable material which the Sheriff stated was marijuana.

Appellant was arrested later that day by the Sheriff when he arrived at the jail. He checked the tag registration on the truck and the truck belonged to appellant.

Deputy Sheriff Thomas Walton testified on direct examination to substantially the same testimony as Sheriff Stephens.

On cross-examination his testimony was at variance with the Sheriff's in respect to the persons who went to the Cobb house on the night of September 9, 1978. Mr. Walton testified that Clayton Andrews went with them that night. It developed that Clayton Andrews was an informer and, no doubt, the Sheriff did not want to divulge the fact that he was an informer.

The Sheriff was recalled to testify concerning Andrews and he testified that Andrews was introduced to him by the name of "Bear." He stated that Lieutenant Bradford introduced Andrews to him and stated he was an informer.

O. E. Billingsly testified that he was an Investigator for the Sumter County District Attorney's Office and participated in the investigation leading to the arrest and confession of appellant. It would overextend this opinion to set forth in detail Billingsly's testimony. In sum, he testified that on the morning of September 10, 1978, he went to the location where the truck and bags of marijuana were found. He identified State's photographic Exhibits E, H and G as being of appellant's truck and these photographs were introduced into evidence. He stated the truck was registered to appellant. It was through this witness that photographs of the various bags of marijuana and the flat tire were introduced into evidence. One bag of marijuana and samples from the other bags were taken and sealed and were personally delivered to Craig Bailey, at the Toxicology Department, in Selma, Alabama.

On voir dire examination out of the presence and hearing of the jury this witness testified that he interrogated appellant after first giving him the Miranda rights and warnings, and appellant said he understood his rights. Billingsly further stated that no promises were made to appellant to get him to make a statement; that no threats were made against him; and that no offers of reward or other inducements were made or held out to appellant to get him to make a statement. The statement took the form of questions and answers. Appellant was asked where he was going with the marijuana that he had on his truck on the night of September 9 and he replied that he just had to move it, that he was moving it, and he really did not know where he was going with it, or where he was going to put it. He was asked where the marijuana came from and he said it did not...