Durden v. State

• Decision Date: 30 June 1980
• Docket Number: 3 Div. 138
• Citation: 394 So.2d 967
• Parties: Martin DURDEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 967

394 So.2d 967

Martin DURDEN v. STATE.

3 Div. 138.

Court of Criminal Appeals of Alabama.

June 30, 1980.

Rehearing Denied July 29, 1980.

William J. Baxley and James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Martin Durden was indicted in six counts for violating the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama 1975 (Acts 1971, No. 1407, p. 2378, § 401(a)). Two of said counts charged Durden with the unlawful sale of cocaine, two counts charged unlawful possession of cocaine, and two charged unlawful possession of marijuana. Durden pleaded "not guilty" and "not guilty by reason of insanity" to each count, and the counts were consolidated for trial. Durden was found guilty by the jury on all counts. The court sentenced him to serve fifteen years in the penitentiary and pay a five thousand dollar fine on each count of selling cocaine, said prison terms to run consecutively. Additionally, Durden was sentenced to serve five years in the penitentiary for each remaining count, said terms to run concurrently with the two fifteen year terms. Durden's application for new trial raised the issues presented by this appeal and after a hearing the trial court overruled the motion. Durden has been represented at all stages by retained counsel.

On February 28, 1979, officers of the A.B.C. Enforcement Division, Montgomery Police Department, and Montgomery Sheriff's Department seized quantities of cocaine and marijuana from appellant's residence on Pike Road and his place of business, David's Den, both located in Montgomery County, Alabama. The raids were conducted pursuant to two search warrants issued by two District Court judges upon the affidavits and personal examination of one Michael True. The sufficiency of these warrants was challenged by appellant at a pretrial motion to suppress hearing on the ground that the supporting affidavits were faulty. After a hearing, the trial judge overruled the motion.

At trial, the first witness for the State of Alabama was Michael True, who testified that he knew the appellant and had worked for him at various times, both at appellant's farm and at David's Den. True, by his own admission a user and dealer in narcotics, related that he had obtained cocaine from appellant on several occasions and had sold cocaine to one Gater Black, whom he later discovered to be A.B.C. Undercover Agent Larry Payne, on three occasions in early January, 1979. On the third occasion, True stated, he sold the cocaine to Gater Black at a Montgomery apartment complex and subsequently delivered the money he received for the sale to appellant, who was waiting in a nearby parking lot. True testified that he took the money to a bank at appellant's request and changed the larger bills for smaller ones, then returned this money to appellant at David's Den.

The witness testified further that he was arrested in late February, 1979, for selling the cocaine, and conveyed to Montgomery Police Department Headquarters where, in cooperation with A.B.C. Enforcement Agent Don Williams, he placed a telephone call to appellant to arrange another cocaine buy. After talking with appellant, True related he was wired with a transmitter and accompanied Agent Williams, A.B.C. Agent Jack Bell, and several others to appellant's mobile home. At the mobile home, True purchased some cocaine from appellant, which cocaine was turned over to the officers later that night. True stated that the next day he once again arranged to purchase some cocaine from appellant, this time at David's Den. This transaction was also completed after initial misgivings by appellant that he was being "set up." True further testified that he told the officers where appellant kept his marijuana at his residence, and that appellant had secreted some cocaine in an address book at his David's Den office. True admitted to being involved in the sale of drugs and cooperating with the authorities because of his own arrest on the charges of selling cocaine.

Allen Adair, a criminalist with the State Department of Forensic Sciences, testified that he had received three items of evidence, one directly from A.B.C. Agent Larry Williams, and the other two from Lonnie Harden, another employee of the same department, who had in turn received them from Williams. Adair stated that he analyzed the items and found them to contain 3.6 grams, 1.2 grams, and 16 grams, respectively, of cocaine. Adair identified a fourth exhibit as one which had been submitted by A.B.C. Agent Charles West, and which contained .9 of a gram of cocaine. Likewise, the witness identified a fifth exhibit as one which he had received from Criminalist Thomas Hopen, who had in turn received it from A.B.C. Agent David Duke, and stated that it contained a quantity of cocaine, weighed by Mr. Hopen to be 1.96 grams. A sixth exhibit was identified by the witness to contain 9.4 grams of marijuana, 29 milligrams of cocaine, and one tablet of diazepam (valium). A seventh exhibit was identified as containing 1.6 grams of cocaine and 33 grams of marijuana.

Larry Payne testified that he had been an undercover narcotics agent with the A.B.C. Enforcement Division during early 1979, and had been using the alias "Gater Black" at that time. Payne stated that he had purchased cocaine from Mike True on three separate occasions in early January, 1979, and identified the three exhibits first identified by Mr. Adair as the cocaine which he had received and subsequently turned over to Agent Williams.

Thomas Hopen, a criminalist with the Department of Forensic Sciences, testified to having received and weighed an item from Agent David Duke, subsequently turning it over to Allen Adair.

Lonnie Harden, a firearms and toolmark examiner for the same department, testified to receiving two envelopes from Larry Williams, but could not positively identify them in court.

Don A. Williams, a narcotic investigator with the A.B.C. Enforcement Division, testified that he had arrested Mike True on February 27, 1979, and had taken him to the Montgomery Police Department Headquarters. The witness related that he had asked True to help him apprehend True's supplier. Williams stated that True gave him a phone number, which Williams dialed, and that True had a subsequent conversation, which Williams recorded. Williams testified that he verified the phone number as that of Martin Durden through the Montgomery telephone directory. The tape recording was admitted into evidence and played for the jury. Subsequently, the witness stated, he accompanied True to appellant's trailer and monitored the conversation between True and appellant from a parked car some distance away by means of the hidden transmitter on True's person. Williams stated that True had been supplied with marked money with which to make the purchase. After the meeting, the witness and True returned to the police station where True completed an affidavit, which True later signed in the presence of a district judge.

Williams further testified that he directed True to again contact appellant about purchasing cocaine, that True was supplied with marked money, and that True then went to David's Den. Upon True's return, he was searched and two packages of cocaine removed. The witness initialed the packages and gave them to Agent Duke, and subsequently was able to identify them from the witness stand. Williams stated that he accompanied True before the district judges and witnessed True sign the affidavits in the judges' presence. He further testified that he accompanied those officers conducting the subsequent searches of appellant's business and home, but was unable to locate any of the marked money.

A.B.C. Agent David Duke stated that he had received one exhibit from Agent Williams and had transferred it to Mr. Hopen. After his identification, the evidence was admitted over appellant's objection. A.B.C. Agent Jack Bell testified that he had followed True to appellant's home on the night of February 27, 1979, and had tape recorded True's conversation with appellant through the use of the hidden transmitter and a walkie-talkie, with the aid of Agent Charles West. The witness identified the tape, but appellant's objection to its admissibility was sustained. The witness further stated that he flew a helicopter, keeping appellant under surveillance the next day. A.B.C. Agent Charles West stated that he recorded the serial numbers of the money given to Mike True for the purchase of cocaine, but had been unable to later locate the money during the search at David's Den. The agent identified an exhibit as the cocaine which True had brought back from his visit to appellant's mobile home, which exhibit West transferred to Allen Adair.

A.B.C. Agent Van Kominisky testified to participating in the search of appellant's trailer and finding a fruit cake can containing marijuana and cocaine on the refrigerator in the trailer. This evidence was admitted over appellant's objection. Montgomery Police Officer Joe Kyser testified that he was present at David's Den when Agent Larry Williams discovered a quantity of marijuana. The witness stated that he assumed possession of the marijuana and subsequently transferred it to Mr. Adair.

The final State's witness was A.B.C. Agent Larry Williams, who related that he had participated in the search of David's Den, and had discovered cocaine secreted in a desk book, and marijuana in a box in an adjoining storage room. He further stated that he had received several packages of cocaine from Larry Payne and had conveyed them to the toxicology laboratory. Finally, he testified that Mike True had told him exactly where the cocaine would be at David's Den.

The State rested, and appellant's motion to exclude for insufficient corroboration, insufficient evidence to establish possession, and the failure of ...