Garrick v. State, CR-90-305

• Decision Date: 23 August 1991
• Docket Number: CR-90-305
• Citation: 589 So.2d 760
• Parties: Michael Scott GARRICK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 760

589 So.2d 760

Michael Scott GARRICK v. STATE.

CR-90-305.

Court of Criminal Appeals of Alabama.

Aug. 23, 1991.

Rehearing Denied Oct. 11, 1991.

George W. Andrews III, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Michael Scott Garrick was charged in three separate indictments with the unlawful distribution of a controlled substance in violation of § 13A-12-211, Code of Alabama 1975. He was convicted of two of the charges and was sentenced to seven years in prison. He raises 10 issues on appeal. The relevant facts will be discussed as they pertain to the issues.

I

The appellant, Garrick, contends that the trial court erred in denying his motion to dismiss the indictments because the assistant district attorney failed to provide information to his superiors concerning the appellant's cooperation with the police. The record reveals that during a pretrial hearing on the motion to dismiss, Officer Frank Mealer testified that prior to being indicted, the appellant had cooperated with the police in an attempt to make new drug cases. That attempt was unsuccessful. He further testified that after discussing the matter with the appellant's attorney, he called the district attorney's office and left a message that he had no objection to a reduced charge of possession with a maximum 10-year sentence. He testified that he talked to Assistant District Attorney John Bowers and that Bowers told him he would convey the message. At the hearing, the appellant's attorney stated that there was no agreement with the district attorney's office, but that historically the wishes of the police had a "strong input" in Jefferson County. (R. 16.) The trial judge reserved his ruling pending receipt of Bowers's affidavit. Bowers's affidavit stated that he had no recollection of the conversation with Mealer, but that if he did receive a message, he was sure he wrote it down and gave it to the proper assistant district attorney. The affidavit further stated that he did not make any agreements concerning the case at any time. The trial judge denied the appellant's motion.

The appellant states in brief that there was no "hard-and-fast agreement in this case." (Appellant's brief, p. 19.) He argues, however, that justice requires that his convictions be reversed. We disagree. In essence, the appellant argues that he has a constitutional right to a negotiated plea agreement. There is, however, no such constitutional right. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (cited in Ex parte Yarber, 437 So.2d 1330 (Ala.1983)). The State is not required to enter into a plea agreement, and it may choose not to do so. Ex parte Yarber. Although the appellant contends that Officer Mealer's lack of objection to the agreement was never communicated to the appropriate party, it is just as likely that the message was communicated, but that the district attorney's office had no desire to negotiate a plea. The record does not reveal the existence of a negotiated plea agreement. The appellant admits that there is no agreement. The record reveals that Officer Mealer simply told a member of the district attorney's office that he did not object to a reduction in the charge. There is absolutely no evidence that Assistant District Attorney Bowers made any plea agreement or that he even had the apparent or actual authority to make such an agreement. See generally Madison v. State, 561 So.2d 1123 (Ala.Crim.App.1990). We refuse to extend the application of Ex parte Yarber to anything short of a negotiated plea agreement. We find that the trial court properly denied the motion to dismiss the indictments.

II

The appellant contends that the trial court erred in denying his motion for mistrial after the prosecutor asked a witness whether an informant, who did not testify, told the witness that the informant had been threatened, and the witness responded affirmatively. The record reveals that the trial court sustained the appellant's objection to the question and gave the jury curative instructions. The trial court also asked the jurors if any of them felt that they could not disregard what they had heard concerning the informant. None of the jurors responded affirmatively.

There is a prima facie presumption against error when the trial judge immediately charges the jury to disregard improper remarks or answers. Garrett v. State, 580 So.2d 58 (Ala.Crim.App.1991); Desimer v. State, 535 So.2d 238 (Ala.Crim.App.1988); Dixon v. State, 476 So.2d 1236 (Ala.Crim.App.1985). "A motion for mistrial implies a miscarriage of justice and should only be granted where it is apparent that justice cannot be afforded." Dixon at 1240; See also Young v. State, 416 So.2d 1109 (Ala.Crim.App.1982). "A trial judge is allowed broad discretion in determining whether a mistrial should be declared, because he is in the best position to observe the scenario, to determine its effect upon the jury, and to determine whether the mistrial should be granted." Dixon at 1240. "A mistrial is an extreme measure and should be denied when the prejudicial quality of the comment can be eradicated by curative instructions." Garrett, 580 So.2d at 60. See also Dixon; Young.

We find that the testimony did not create such prejudice that it could not be eradicated by the curative instructions. We also note that the testimony did not name the person who allegedly threatened the informant. Furthermore, none of the jurors stated that they would be unable to disregard the challenged testimony.

III

The appellant contends that the trial court erred to reversal in overruling his objection to the prosecutor's statement during closing argument that "[i]t was the first time that he had gotten caught, but it wasn't his first time dealing drugs." (R. 169.) The record reveals that this statement was made during the second portion of the prosecutor's closing argument, which occurred after the appellant's closing argument. We also note that we cannot clearly determine from the record the context in which the statement was made. See generally Bethune v. State, 542 So.2d 332 (Ala.Crim.App.1989).

Although counsel may not argue facts which are not in evidence, counsel "may state or comment on proper inferences from the evidence and may draw conclusions from the evidence based upon his own reasoning." Sasser v. State, 494 So.2d 857, 859 (Ala.Crim.App.1986). See also Sanders v. State, 423 So.2d 348 (Ala.Crim.App.1982). "Liberal rules are allowed counsel in drawing inferences from the evidence in their argument to the jury, whether they are truly drawn or not." Sasser at 860. "Prosecutors should be allowed wide latitude in their exhortations to the jury." Armstrong v. State, 516 So.2d 806 (Ala.Crim.App.1986). See also Varner v. State, 418 So.2d 961 (Ala.Crim.App.1982).

We find that the prosecutor's statement was a legitimate inference from the evidence presented. See generally Brinks v. State, 500 So.2d 1311 (Ala.Crim.App.1986); Green v. State, 389 So.2d 537 (Ala.Crim.App.), cert. denied, 389 So.2d 541 (Ala.1980). The State's evidence tended to prove that the appellant sold "Ecstasy" tablets to Officer Mealer on three occasions on August 9, 1989, September 12, 1989, and September 23, 1989. The appellant was apparently arrested sometime after the September 23 sale. The prosecutor could simply have been arguing from the evidence that although the appellant was not arrested until after the third incident, that incident was certainly not the first time he had sold drugs. Furthermore, the appellant testified that Stephanie Hornback, an informant who did not testify at the trial, contacted him on two occasions prior to August 9, 1989, about obtaining drugs. Although he testified that he did not obtain drugs for her on those two occasions, he testified that he could have helped her if he wanted to. We find that the prosecutor could properly draw an inference from the evidence that the appellant had been involved in dealing drugs prior to the charged offenses. In light of the great presumption in favor of the trial court's ruling and given the uncertainty as to the context of the allegedly improper statement, we cannot find that the trial court abused its discretion in overruling the objection. See Bethune.

IV

The appellant next contends that the prosecutor erred in making the following statement during the second portion of her closing argument: "I agree with Mr. Andrews' last statement. I want justice here today, too. I want a drug dealer off the streets, out of our community, and away from our kids." (R. 168.) We note, as we did in part III of this opinion, that the record does not disclose the context in which the statement was made. Our view of the record leads us to the conclusion, however, that the statement was a proper appeal for law enforcement. See, e.g., Soriano v. State, 527 So.2d 1367 (Ala.Crim.App.1988) (prosecutor's statement during closing argument in cocaine possession case that the defendant would "sell it to my children and yours" was proper appeal for law enforcement); Patton v. State, 384 So.2d 19 (Ala.Crim.App.), cert. denied, 384 So.2d 23 (Ala.1980) (prosecutor's statement that "we are not going to put up with heroin in our community. We are not going to put up with it getting in the veins of our children" was proper comment on evil of drugs and an appeal for law enforcement).

V

The appellant next contends that the trial court erred in refusing to give his requested charge concerning the bias of agents and informants for the State. The appellant argues that the trial court's oral charge did not adequately cover the subject of bias because it related only to witnesses and Stephanie Hornback was not a witness. This argument has no merit. Jury charges are properly refused if they are confusing or misleading. Brooks v. State, 580 So.2d 66 (Ala.Crim.App.1991); Minnifield v. State, 439 So.2d 753 (Ala.Crim...