Ex parte Washington
Citation | 818 So.2d 424 |
Parties | Ex parte Stanley F. WASHINGTON. (Re Stanley Frieson Washington v. State of Alabama). |
Decision Date | 12 October 2001 |
Court | Supreme Court of Alabama |
818 So.2d 424
Ex parte Stanley F. WASHINGTON.(Re Stanley Frieson Washington v. State of Alabama)
1000574.
Supreme Court of Alabama.
October 12, 2001.
Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty. gen., for respondent.
WOODALL, Justice.
Stanley Frieson Washington was indicted for trafficking in cocaine, a violation of § 13A-12-231(2), Ala.Code 1975; distribution of a controlled substance, a violation of § 13A-12-211, Ala.Code 1975; and two counts of failure to affix a tax stamp, a violation of § 40-17A-4, Ala.Code 1975. A jury convicted Washington on all counts. Washington appealed his conviction to the Court of Criminal Appeals, which affirmed the judgment of the trial court on all counts. Washington v. State, 818 So.2d 411, 415 (Ala.Crim.App.2000) (opinion on return to remand). Subsequently, Washington filed a petition for certiorari review with this Court, which we granted. We affirm the judgment of the Court of Criminal Appeals.
Washington argues that the trial court erred in refusing to instruct the jury that, under § 13A-12-231(2), Ala.Code 1975, the State must prove that Washington knew that the quantity of cocaine he possessed exceeded 28 grams.1 Section 13A-12-231(2) provides:
"(2) 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.'"
In support of his interpretation of § 13A-12-231(2), Washington cites Calhoun v. State, 460 So.2d 268 (Ala.Crim. App.1984). He relies on the statement in that case that "under our trafficking statute, the State must prove that the accused knew he was in possession of more than one kilo of marijuana." Calhoun, 460 So.2d at 270. However, the pertinent issue
The Court of Criminal Appeals has consistently interpreted the various subsections of § 13A-12-231 as requiring the State to prove the knowing possession of the controlled substance, but not knowledge of the actual quantity possessed. See Harris v. State, [Ms. CR-99-1439, August 25, 2000] ___ So.2d ___, ___ (Ala.Crim. App.2000) ("In order to present a prima facie case of trafficking in cocaine, the State must prove that the defendant was knowingly in actual or constructive possession of 28 grams or more of cocaine. Korreckt v. State, 507 So.2d 558 (Ala.Crim. App.1986). The state is not required to prove that the defendant knew that the cocaine in his possession weighed 28 grams or more."). See also Insley v. State, 591 So.2d 589, 591 (Ala.Crim.App.1991) ("In a prosecution for trafficking in marihuana, the State need not prove that the defendant knew the weight of the marihuana proved to be in the defendant's possession."). This Court has also stated that the State must prove only that the defendant was knowingly in possession of a quantity of the illegal substance exceeding the quantity required under the trafficking statute. See Ex parte Presley, 587 So.2d 1022, 1023 (Ala.1991).
Other jurisdictions have interpreted very similar statutes in the same manner. The Delaware Supreme Court concluded that its legislature "intended the mens rea to encompass only the substance itself—a knowledge of the amount need not be proven by the State. Thus, `[t]he word "knowingly," as used in the statute, modifies only the possession element of the offense and not the quantity.'" Robertson v. State, 596 A.2d 1345, 1355 (Del.1991). The Court of Appeals of Georgia has stated: "The trafficking statute explicitly requires as the mens rea that defendant know he or she possesses the substance and know it is cocaine ... The statute is not, however, reasonably subject to the construction urged, that defendant must know or should know the substance possessed weighs at least 28 grams." Cleveland v. State, 218 Ga.App. 661, 663, 463 S.E.2d 36, 38 (1995). The Supreme Court of Massachusetts reached much the same conclusion in Commonwealth v. Rodriguez, 415 Mass. 447, 453, 614 N.E.2d 649, 653 (1993). That court stated:
"[T]he Commonwealth need not prove that the defendant had actual knowledge of the quantity. Instead, in order to convict, the Commonwealth must satisfy the jury that the amount of cocaine was fourteen grams or more.... The judge was not required to instruct the jury that the defendant had to have actual knowledge that the quantity of cocaine was fourteen grams or more."
AFFIRMED.
MOORE, C.J., and HOUSTON,
BROWN, HARWOOD, and STUART, JJ., concur.
SEE, J., concurs in the result.
LYONS and JOHNSTONE, JJ., dissent.
JOHNSTONE, Justice (dissenting).
I respectfully dissent from the decision to affirm the judgment of the Court of Criminal Appeals in its affirmance of Washington's conviction for trafficking in cocaine. We should reverse this particular conviction and remand this case for a retrial on this particular charge with an appropriate jury instruction on the essential elements of trafficking in cocaine.
The trial judge erred in refusing the defendant's requested jury instruction as follows:
"In order to convict the Defendant of Trafficking in cocaine, not only must the State prove that he knowingly possessed the controlled substance, the State must also prove beyond a reasonable doubt that...
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