Ford v. State, 3 Div. 821
| Decision Date | 10 January 1984 |
| Docket Number | 3 Div. 821 |
| Citation | 445 So.2d 981 |
| Parties | Jimmy FORD v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Edward W. Drinkard, Prattville, for appellant.
Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for appellee.
On Rehearing
On November 29, 1983, this court unanimously affirmed this case without opinion. 443 So.2d 67.
Because counsel has filed a request for statement pursuant to Rule 39(k) and Rule 40, A.R.A.P., this court sets forth the following as its opinion.
On the afternoon of March 3, 1982, Birmingham Police Officer Wayne Ellis stated that he had been working undercover in the Montgomery-Autauga County area, helping to make purchases in drug cases. Officer Ellis was on loan to the Prattville Police Department when he went to the home of the appellant, just off Highway 14, near Prattville. There he purchased approximately one-quarter pound of marijuana and paid the appellant $125.00. Ellis made a positive in-court identification of appellant, gave his physical description, hair style and mustache, and stated that shortly after leaving appellant's home he met Officer R.C. Martin and turned over the marijuana to him.
Officer Martin corroborated this testimony and stated that he had remained in the area and showed Officer Ellis where appellant's home was and had shown Officer Ellis a photograph of appellant prior to his making the purchase in question.
Officer Martin then stated that he turned over the marijuana to the toxicologist's office, where Allen Adair examined same, and testified that such was, in fact, marijuana.
A motion to exclude the State's evidence was overruled.
On cross-examination of Officer Ellis, appellant's counsel brought out the fact that Officer Ellis had been to appellant's home on two occasions, and on the second occasion, made a second purchase of marijuana.
The appellant's defense was that of alibi; namely, that he was living at the home of his current wife who was at the time his girlfriend on the date of the sale, March 3, 1982. He then presented the testimony of two brothers, a cousin and a neighbor, all of whom corroborated his story that he had a brother who looked just like him and it was his brother who was at home on that date, and if any sale was made, that the brother made it. The appellant did admit on cross-examination that he owned a green Lincoln automobile matching the description given by Officer Ellis during his testimony on direct for the State.
There was no exception to the oral charge of the court.
Appellant's counsel raises four points on appeal. The first deals with the cross-examination of the defendant with reference to certain facts relating to a subsequent sale of marijuana to undercover agent Wayne Ellis. This matter had been opened up, however, by Mr. Drinkard on cross-examination in the State's case in chief, attempting to establish that the in-court identification was faulty as being based on only observing appellant once when Officer Ellis testified he observed appellant on three occasions and had seen a photograph. The trial court's ruling was here correct as showing the entire transaction, part of which was brought out by the appellant. Hemby v. State, 26 Ala.App. 273, 160 So. 119, cert. denied, 231 Ala. 7, 160 So. 120 (1934).
The appellant secondly argues that his motion for new trial was improperly denied because Officer Ellis' testimony was "perjured". This, too, is a misreading of Officer Ellis' testimony and the trial court found that appellant's counsel had opened the door in his cross-examination of Ellis, thus there was no perjury and the officer was simply pointing out that he had been to the home on another occasion and made a second buy. Thus, counsel should not be allowed to take advantage of a situation which he created in his own cross-examination. See Murrell v. State, 377 So.2d 1102 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979).
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...controlled substances were found in and around her house. Green v. State, 389 So.2d 537 (Ala.Cr.App.1980). See also Ford v. State, 445 So.2d 981 (Ala.Cr.App.1984) (wherein the prosecutor remarked that "the only regular job he had was dealing in dope"). While a prosecutor may argue his inter......
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