Funches v. State
| Decision Date | 17 June 1975 |
| Docket Number | 1 Div. 581 |
| Citation | 318 So.2d 762,56 Ala.App. 22 |
| Parties | Mamie Delores FUNCHES v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen., for the State.
Appellant was put to trial upon a two-count indictment charging, (1) possession of heroin, and (2) possession of cocaine. She was represented throughout the trial by retained counsel who represents her on this appeal. At arraignment she pleaded not guilty.
At the conclusion of the case, the court charged out count two (2) of the indictment. Count 1, omitting the formal parts, reads as follows:
'THE GRAND JURY of said County charge, that, before the finding of this indictment MAMIE DELORES FUNCHES whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully possess heroin on to-wit: August 3, 1973, and that said Mamie Delores Funches has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act on, to-wit; March 28, 1973 against the peace and dignity of the State of Alabama.'
This is another search warrant case. For a better understanding of the issues involved on this appeal we deem it necessary to set out the affidavit and search warrant:
'AFFIDAVIT FOR SEARCH WARRANT
'STATE OF ALABAMA
COUNTY OF MOBILE
0158
'Before me, the undersigned Municipal Judge of the City of Mobile, Alabama, personally appeared Walter Pickett who being duly sworn deposes and says:
'That he has reason to believe that on the premises known as 652 Rickarby Street, in the City of Mobile, Alabama, or its police jurisdiction, there is now being concealed certain property, namely heroin and other narcotic drugs, which are illegally kept used and/or sold, and that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:
'I am Officer Walter Picket (sic) of the Mobile, Alabama Police Department, assigned to Criminal Investigation Division, presently working with drug violations.
'Yesterday I talked with a reliable informant. This informant has given me reliable information in the past, which information led to arrests and convictions of drug abusers.
'This informant told me that he had been inside the above listed residence within the past three days and had while there observed the above drug inside this residence and in the possession of a subject known to the informant as 'Bonnie'. The informant knows this subject to be the occupant of the above residence.
'/s/ Walter Pickett
Signature of Affiant
_ _
'Sworn to and subscribed before me, this 26Th day of July, 1973.
'/s/ T. Dwight Reid
Judge of Municipal Court
'1. A search warrant must be served in the daytime unless the affidavit states positively that the property is on the person or place to be searched, in which case it may be served at any time.
'SEARCH WARRANT
'STATE OF ALABAMA
COUNTY OF MOBILE
0158
'TO THE CHIEF OF POLICE OF THE CITY
OF MOBILE, ALABAMA OR OTHER
LAW ENFORCEMENT OFFICER OF THE CITY OF MOBILE
'Affidavit having been made before me by Walter Pickett that he has reason to believe that on the premises known as 652 Rickarby Street, in the City of Mobile, Alabama, or its police jurisdiction, there is now being concealed certain property, namely heroin and other narcotic drugs, which are illegally kept used and/or sold, and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the foregoing grounds for application for issuance of the search warrant exist.
'You are hereby commaned (sic) to search forthwith the place named for the property specified, serving this warrant and making the search in the daytime and if the property be found there to seize it, leaving a copy of this warrant and a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property before me forthwith at the Municipal Court of the City of Mobile.
'Witness my hand this 26Th day of July, 1973.
'/s/ T. Dwight Reid
Judge of Municipal Court
'1. A search warrant must be served in the daytime unless the affidavit states positively that the property is on the person or place to be searched, in which case it may be served at any time.
'RETURN
'I received the attached search warrant 7--26, 1973, and have executed it as follows:
'On 8--3, 1973 at 9 o'clock 00 A.M., I searched (the person) (the premises) described in the warrant and I left a copy of the warrant with Mamia (sic) Funches together with a receipt for the items seized.
'The following is an inventory of property taken pursuant to the warrant:
'1 Ea. Pink Balloon containing 8 capsules with brown substance.
'This inventory was made in the presence of Sgt. J. Orso and Off. W. Pickett.
'I swear that this inventory is a true and detailed account of all the property taken by me on the warrant.
'/s/ Walter Pockett
'Subscribed and sworn to and returned before me this _ _ day _ _, 19_ _.
'_ _.'
Appellant filed a pre-trial motion to suppress the evidence and to controvert the legality of the search warrant. A fullblown hearing was had on this motion and considerable testimony was taken. At the conclusion of the hearing the court entered an order denying the motion to suppress.
The main thrust of the motion to suppress is grounded on the lack of probable cause for issuing the search warrant in that the affidavit was insufficient in failing to state with specificity, and corroborating evidence to establish, the reliability of affiant's unidentified informer and, too, the affidavit upon which the search warrant was issued was based upon hearsay and upon information and belief, failed to state the source of such information, and failed to set forth any facts upon which to base belief that there were narcotics on the described premises.
During this hearing appellant moved for a mistrial on the ground that the indictment specifically alleged that appellant had previously been convicted of an offense under the Uniform Alabama Controlled Substances Act on, to-wit: 'and that said mamie Delores Funches has heretofore been convicted of an offense under the Uniform Alabama Controlled Substances Act on, to-wit: March 28, 1973, etc.', on the ground that it would be advising the jury that she had previously been convicted of another offense and would be highly prejudicial in the trial of her case.
Title 22, Section 258(53), (a), (b), Code of Alabama 1940, provides as follows:
'Any person convicted of a second or subsequent offense under this chapter may be imprisoned for a term up to twice the term outherwise (otherwise) authorized, fined an amount up to twice that otherwise authorized, or both.
'
Appellant had previously been convicted of unlawful possession of a controlled substance and was sentenced to five years imprisonment in the penitentiary. She appealed and this court affirmed the judgment of conviction. Funches v. State, 53 Ala.App. 330, 299 So.2d 771, Certiorari denied, 293 Ala. 752, 299 So.2d 778.
In Amerson v. State, 40 Ala.App. 540, 117 So.2d 406, it is said:
In order to make operative Title 22, Section 258(53)(a)(b), Supra, evidence of a former conviction is not admissible unless it is alleged in the indictment and proof offered in support thereof. Ex parte State ex rel. Davis, 206 Ala. 546, 90 So. 278; Steel v. State, 35 Ala.App. 163, 44 So.2d 795. A certified copy of the previous judgment of conviction was made by the circuit clerk and introduced in evidence.
There was no error in overruling appellant's motion for a mistrial because of the averment of a previous conviction contained in the present indictment.
On the motion to suppress it developed by the testimony of Police Officer Walter Pickett that he got a call from an informer that he had some information for him and to meet him on Davis Avenue at Board Street in the City of Mobile. This was on July 25, 1973. The informer told Pickett that he had been in the residence known as 652 Rickarby Street the day before (July 24, 1973) and had observed heroin in the possession of one 'Bonnie', who resided at this address and that he was there by invitation. Pickett further testified that he considered his informer reliable as he had given him reliable information in the past several months relating to drug cases (as well as other cases) and that the information so imparted to him led to the arrest and conviction in five or six drug cases. On cross-examination he was asked...
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