Dooley v. State, 5 Div. 667

• Decision Date: 15 June 1990
• Docket Number: 5 Div. 667
• Citation: 575 So.2d 1191
• Parties: Walter Lewis DOOLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1191

575 So.2d 1191

Walter Lewis DOOLEY v. STATE.

5 Div. 667.

Court of Criminal Appeals of Alabama.

June 15, 1990.

Rehearing Denied Aug. 3, 1990.

Certiorari Quashed March 8, 1991 Alabama Supreme Court 89-1683.

Thomas L. Rountree and M. Joanne Camp, Opelika, for appellant.

Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Walter Lewis Dooley, was convicted of the unlawful possession of cocaine, in violation of § 13A-12-212(a)(1), Code of Alabama 1975. He was sentenced to six months in the Lee County jail and five years of probation.

The evidence tended to show that on November 18, 1988, Judge James C. Gullage issued a search warrant for 506-B Raintree Street in Opelika, Alabama. The warrant commanded the immediate search of "Bo Peep" and any other persons on the premises, for cocaine or any other controlled substance. (It was undisputed at trial that "Bo Peep" is the appellant's alias.)

At approximately 6:30 p.m. of that same day, the search warrant was executed by Detective Melvin Harrison and others from the Opelika Police Department and the Alabama Alcohol Beverage Control (ABC) Board. Robert Chambers, an undercover agent, walked up to the front door and knocked on it. Willie Joe Shelton opened the door and after a brief exchange with the agent, slammed the door. Detective Harrison and the other officers arrived at about this time to assist Agent Chambers.

Detective Harrison knocked on the door and announced that he was a police officer and had a search warrant for the house. Yells of "police" and "shuffling" noises were emanating from within the house. For approximately the next three or four minutes, the law enforcement officers tried unsuccessfully to gain entrance into the house. Finally, the appellant opened the door.

Detective Harrison pushed the appellant aside and went immediately to the bathroom, because he heard water running and the toilet flushing. The "J tubing" from underneath the sink was removed and the water that was in the "trap" was collected in a mason jar. It was later determined that this water contained 9.6 milligrams of cocaine per milliliter of water.

In the meantime, the people in the house were secured and a search was conducted. During the search, the officers found an orange-colored top to a syringe, a gold-colored spoon with white residue in it, a package of clear, zip-lock bags, and a piece of aluminum foil which had white powder in it. Before the appellant was arrested, he told Detective Harrison that he was an addict and had been an addict since the Vietnam War.

The appellant raises four issues on appeal.

I

The appellant first contends that the trial court prejudiced the jury when it commented to the jury venire that "something happened overnight and two jurors for that case didn't show up." The appellant asserts that this comment raised inferences and speculations in potential juror's minds which biased his right to a fair trial. Therefore, the appellant contends that the trial court should have granted his motion to quash the venire and continue the case.

The record reads, in relevant part:

"THE COURT: Ladies and gentlemen, we selected a jury Tuesday, I guess it was for the case of State versus Walter Lewis Dooley. The jury was not actually sworn and no evidence was heard in that case. I instructed the jury to be back yesterday morning at nine o'clock to actually begin the case--is that a juror that just walked out?

"THE BAILIFF: No.

"THE COURT: All right. Something happened overnight and two of the jurors selected for that case didn't show up and because of that we could not begin the case and the Court is going to have to restrike that jury and select another twelve folks to sit on that case.

"....

"It wouldn't be fair to either side for you to start making up your mind about this case until you've heard it all. Now, you're probably wondering why we're doing this over again from the other day. The reason that we had to start over again is one of the jurors selected in this case before called in on the code-a-phone Tuesday night and the code-a-phone said all jurors come back Thursday. Well, he thought that meant him too so he didn't come up here yesterday and that caused us a problem. The other juror who didn't show up had a sick child. And that's the reason that we had a problem in continuing with the jury originally selected in this case. It was just a misunderstanding on the part of one juror and a sick child on the part of the other. So occasionally those things happen, not very often, but we're going to change what the code-a-phone says from now on."

In McNeely v. State, 524 So.2d 375 (Ala.Cr.App.1986), this court held:

" 'Each case of allegedly improper remarks by a trial judge must be judged on its own peculiar facts. Oglen v. State, 440 So.2d 1172, 1175-76 (Ala.Cr.App.), cert. denied, Ex parte Oglen, 440 So.2d 1177 (Ala.1983); James v. State, 337 So.2d 1332, 1341 (Ala.Cr.App.1976).' Gamble v. State, 480 So.2d 38, 40 (Ala.Cr.App.1985). Even if a trial judge's statements are erroneous, ' "[i]t cannot be seriously contended that every expression of opinion by the court, during the progress of the trial, ... shall furnish ground for reversal." Lang v. State, 279 Ala. 169, 170, 182 So.2d 899 (1966).' Gamble v. State, supra, at 40. ' "Remarks by the trial judge may be open to criticism, but they are not error unless they have affected the result of the trial." ' Towns v. State, 494 So.2d 798, 800 (Ala.Cr.App.1986), quoting Cox v. State, 489 So.2d 612 (Ala.Cr.App.1985). See also McCovery v. State, 365 So.2d 358 (Ala.Cr.App.1978)."

McNeely, supra, 524 So.2d at 380.

In the case at bar, it is clear that the remarks made by the trial court were simply an explanation as to why it was necessary to restrike the jury. We are of the opinion that this in no way prejudiced the jury. Thus, the trial court correctly denied the appellant's motion to quash the venire and his motion for continuance.

II

The appellant's second contention is that the search warrant issued by Judge Gullage was invalid and, therefore, that the evidence seized was inadmissible. He asserts two reasons to support his contention.

First, the appellant argues that the search warrant was invalid because, he says, the person to be searched was incorrectly named or described. The search warrant reads, in pertinent part:

"You are hereby commanded to make immediate search of the person and premises of Willie Marvin Dooley, alias 'Bo Peep,' who lives at 506-B Raintree Street in Opelika, Alabama, and any other persons therein, and any vehicles on the premise for the following property cocaine hydrochloride or any other controlled substance and United States Currency and if you find the same or any part thereof, to bring it forthwith before me, at my office at Opelika, Lee County, Alabama."

On November 6 or 7, 1988, Detective Harrison received information from a confidential informant that cocaine was being stored and sold at 506-B Raintree Street in Opelika. Based on this information, Detective Harrison arranged for the informant to make a controlled buy of cocaine at that address. He took the informant, who was equipped with a body microphone, to the residence. Detective Harrison then sat in his car across the street and listened to the informant purchase $25 worth of cocaine from a man who called himself "Bo Peep." (The appellant admitted at trial that his nickname is "Bo Peep.")

After the controlled buy was made, Detective Harrison returned to the police department and checked the police computer to find out whose name the electric service was in at 506-B Raintree Street. The service was in Willie Marvin Dooley's name, so that was the name placed on the search warrant. However, unknown to Detective Harrison, Willie Marvin Dooley was the deceased brother of the appellant. It was not until the police arrested "Bo Peep" that they found out his true identity.

The police responsible for obtaining and executing this warrant reasonably believed that Willie Marvin Dooley and "Bo Peep" were one and the same person. In Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), police officers in Maryland made a similar mistake. In that case, Baltimore police officers obtained a warrant authorizing the search of the person of McWebb and "the premises known as 2036 Park Avenue third floor apartment." They reasonably believed that there was only one apartment on the third floor, but after discovering contraband in Garrison's apartment, saw that there was indeed a second apartment on the third floor.

The United States Supreme Court held that a warrant which authorizes a search that later turns out to be ambiguous in scope is nevertheless valid when it is issued. The validity of the warrant must be judged in light of the information available to the officers at the time they obtained the warrant. Maryland v. Garrison, supra, 480 U.S. at 85, 107 S.Ct. at 1017-18. Because the mistake in the case at bar was objectively reasonable, suppression of the evidence is not required.

The appellant also argues that the search warrant was invalid because, he says, material statements in the affidavit in support of the warrant were substantially false. The facts establishing the grounds for issuance of the warrant were set out in the affidavit as follows:

"[A] confidential informant who has been proven to be reliable in the past has purchased cocaine from a black male known as Willie Marvin Dooley, alias, 'Bo Peep,' at 506-B Raintree Street in Opelika, Alabama within the past forty-eight hours. The money used in the purchase was copied and the serial numbers recorded. The purchase was monitored and observed by Detective Melvin Harrison. Detective Harrison checked with the Opelika Light and Power and found the power at 506-B Raintree Street in Opelika, Alabama to be issued to Marvin Dooley."

The appellant claims that...