Finney v. State

• Decision Date: 25 October 2002
• Citation: 860 So.2d 367
• Parties: Lakeisha Shaurelle FINNEY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

860 So.2d 367

Lakeisha Shaurelle FINNEY v.STATE of Alabama.

CR-01-0079.

Court of Criminal Appeals of Alabama.

October 25, 2002.

Rehearing Denied January 7, 2003.

Certiorari Denied April 11, 2003.

Leon Storie, Tuscaloosa, for appellant.

William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appellee.

Alabama Supreme Court 1020597.

SHAW, Judge.

The appellant, Lakeisha Shaurelle Finney,¹ was convicted of three counts of trafficking in marijuana, violations of § 13A-12-231(1),Ala.Code 1975(cases no. CC-98-1688, no. CC-98-1689, andno. CC-98-1691), and one count of trafficking in cocaine, a violation of § 13A-12-231(2),Ala. Code 1975(case no. CC-98-1690).She was sentenced to 15 years' imprisonment for each conviction; the sentences were split, and she was ordered to serve 3 years in confinement followed by 5 years on probation.The court ordered that the sentences in cases no. CC-98-1688andno. CC-98-1689 were to run concurrently with each other, and the sentences in cases no. CC-98-1690andno. CC-98-1691 were to run concurrently with each other and consecutive to the concurrent sentences in cases no. CC-98-1688andno. CC-98-1689.²

The evidence adduced at trial indicated the following.In April 1998, Finney and her husband, Jasper Finney(hereinafter "Jasper") were under investigation for suspected involvement in the Tuscaloosa drug trade.Agent Michael Acker of the Tuscaloosa Police Department, who was assigned to the West Alabama narcotics squad, used a confidential informant, Gregory Kulp, to purchase narcotics from the Finneys.Kulp, who had purchased about two pounds of marijuana per week from Jasper during the previous six months, had agreed to help Agent Acker in exchange for dropping pending possession-of-marijuana charges against him.Kulp normally set up his transactions with the Finneys by telephoning Jasper on Jasper's cellular telephone to arrange a time for the transaction.He would then go to the Finneys' residence, where he would give money to Finney and pick up the narcotics.On occasion, he would place his order directly with Finney, rather than with Jasper.

On April 14, 1998, under Agent Acker's supervision, Kulp telephoned Jasper and requested three pounds of marijuana.Kulp was "wired," given $2,700 in marked bills, searched, and instructed to go to the Finney residence to buy the marijuana.Agent Acker followed Kulp to the residence and stopped at the driveway, while Kulp continued up to the house.Finney answered the door and let Kulp inside.The marijuana was sitting on a table, and Kulp handed Finney the $2,700 (giving rise to the trafficking charge in case no. CC-98-1691).Kulp then asked Finney if she could get him some soft powder cocaine, and she said that she would check into it.Kulp left the house and put the marijuana in his trunk.He then drove to the police station, where Agent Acker took the marijuana out of the trunk.Subsequent testing showed that the substance was, in fact, 2.87 pounds of marijuana.

On April 20, 1998, Kulp arranged another transaction in the same manner as the first one.He was again "wired," given marked money, and instructed to go to the Finney residence.When he arrived, Jasper let him inside.Jasper told Kulp that he had been unable to obtain the powder cocaine that Kulp had asked for previously.Kulp then handed the money to Finney, who counted it and placed it on the table.Finney then retrieved the marijuana from a pantry in the kitchen and gave it to Kulp (giving rise to the trafficking charge in case no. CC-98-1688).Kulp then left with the marijuana, put the marijuana in the trunk of his car, and drove to a nearby church where officers were waiting to seize the marijuana.Subsequent testing revealed that the substance was, in fact, 2.91 pounds of marijuana.

Following the second transaction, the agents executed a search warrant at the Finney residence.As agents pulled into the Finneys' driveway, Finney was backing out in a white Jaguar automobile.When Finney saw the police, she began blowing the horn.Agents arrested Finney and searched the car, where they found a shopping bag containing what subsequent testing revealed to be 2.5 pounds of marijuana (giving rise to the trafficking charge in case no. 98-1689) and electronic scales.As Finney was attempting to back out of the driveway, agents saw Jasper run out of the rear of the residence.He was apprehended in the backyard and was also arrested.During the search of the residence, agents found, among other things, the following: the marked money used by Kulp to purchase marijuana a few minutes before; a plastic bag in the kitchen containing what was later determined to be 341.63 grams of cocaine (giving rise to the trafficking charge in case no. CC-98-1690); electronic scales; a "stash can" in the kitchen containing a false bottom, under which was a small amount of marijuana; a small bag of cocaine in a coffee can in the master bedroom; and over $500 in currency at various places in the residence.

After her arrest, Finney was advised of her Miranda³ rights, and she gave a statement to Agent Acker.Finney told Agent Acker that the marijuana and cocaine were obtained from two black males in Birmingham and that she and her husband normally obtained 50 pounds of marijuana at a time from those individuals.She admitted to having approximately three pounds of marijuana in her car, and stated that she was leaving the residence because she had heard the police helicopter overhead.

At trial, however, Finney denied dealing in narcotics.She also stated that she did not know that Jasper was dealing narcotics, but that she suspected he was.She admitted to giving Kulp a green bag on April 14, 1998, but she claimed that she did so only because her husband had instructed her to and that she did not know what was in the bag, although she suspected that it was marijuana.Finney also testified, in contrast to her statement to police, that she left the house on April 20, 1998, not because she heard the police helicopter, but because her husband had told her to and that she did not know that a bag of marijuana was in her car.

I.

Finney contends that the trial court erred in denying her motion to dismiss the indictment in case no. CC-98-1691 because, she says, count 1 of the indictment is "so devoid of basic essential information that it cannot be said to have charged an offense."(Issue IV in Finney's appellate brief at p. 44.)Specifically, Finney alleges that count 1 of the indictment fails to state an offense because both the date of the offense and her name are omitted from that count of the indictment.

The indictment in CC-98-1691 was titled "The State of Alabama vs. Lakeshia Shalnelle Finney alias Lakeshia S. Finney, Lakeshia Finney, Lakeshia Ball"⁴ and charged Finney in three counts with trafficking in marijuana, distribution of marijuana, and possession of marijuana.Both the date of the offense and Finney's name were omitted from count 1 of the indictment (the trafficking charge).The date and her name were included in counts 2 and 3 of the indictment, although those counts were dismissed on the State's motion on the first day of trial.The body of the indictment charged:

"COUNT 1

"The Grand Jury of said County charge that before the finding of this Indictment, [blank space], did unlawfully and knowingly possess a controlled substance, to-wit: Cannabis, in a quantity in excess of one (1) kilo or 2.2 pounds, but less than 100 pounds, in violation of Section 13A-12-231 of the Code of Alabama.

"COUNT 2

"The Grand Jury of said County charge that before the finding of this Indictment, LAKESHIA SHALNELLE FINNEY, alias LAKESHIA S. FINNEY, alias LAKESHIA FINNEY, alias LAKESHIA BALL, whose name is otherwise unknown to the Grand Jury, did on, to-wit: April 13, 1998, unlawfully sell, furnish, or give away, manufacture, deliver, or distribute a controlled substance, to-wit: Marijuana, in violation of Section 13A-12-211 of the Code of Alabama.

"COUNT 3

"The Grand Jury of said County charge that before the finding of this Indictment, LAKESHIA SHALNELLE FINNEY, alias LAKESHIA S. FINNEY, alias LAKESHIA FINNEY, alias LAKESHIA BALL, whose name is otherwise unknown to the Grand Jury, did on, to-wit: April 13, 1998, unlawfully possess marijuana for other than her own personal use, in violation of Section 13A-12-213 of the Code of Alabama."

(C. 449-50.)

The record reflects that Finney filed her motion to dismiss the indictment on the first day of trial.In her motion, she alleged that the indictment did not apprise her of the charges against which she was expected to defend because, she said, count 1 of the indictment did not state the date the offense occurred or any specific facts of the offense.After hearing arguments from both parties, the trial court denied the motion, finding that count 1 of the indictment sufficiently apprised Finney of the charge against her.Finney never argued to the trial court that the indictment failed to state an offense because her name was omitted from count 1.

Rule 15.2(a), Ala.R.Crim.P., provides that "[o]bjections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pretrial motion as provided in Rule 15.3."Rule 15.3(a)(1), Ala.R.Crim.P., provides that motions "under Rule 15.2 must be made ... [i]n the circuit court, at or before arraignment or by such later date as may be set by the court."Thus, only if the omissions of the date of the offense and Finney's name from the indictment rendered the indictment void for failing to charge an offense or deprived the trial court of subject-matter jurisdiction—the only defects in an indictment that can be raised at any time— can we review Finney's arguments.

Rule 13.2(d), Ala.R.Crim.P., provides, in pertinent part, that "[i]t is not necessary to state the precise time or...