Gibbs v. State, 5 Div. 367

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BOOKOUT
• Citation: Gibbs v. State, 342 So.2d 448 (Ala. Crim. App. 1977)
• Decision Date: 01 February 1977
• Docket Number: 5 Div. 367
• Parties: Ronald GIBBS v. STATE.

Page 448

342 So.2d 448

Ronald GIBBS v. STATE.

5 Div. 367.

Court of Criminal Appeals of Alabama.

Feb. 1, 1977.

John H. England, Jr., Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., Montgomery, for the State.

BOOKOUT, Judge.

The appellant was arrested on September 5, 1975, for possession and sale of marijuana. A preliminary hearing was apparently held sometime before October 30, 1975. On October 30, 1975, the appellant was indicted separately for possession and sale of marijuana. On November 3, 1975, counsel was appointed for the appellant, and he was arraigned. The appellant subsequently changed attorneys and on November 12, 1975, the cases were consolidated and tried. The appellant was found guilty in both cases, and he now appeals the convictions.

The State's evidence was overwhelming to the effect that the appellant sold marijuana to an undercover agent and that the appellant was in constructive possession of another portion of marijuana at a different point in time.

The appellant called three witnesses in his defense. Their testimony if believed by the jury would have tended to show that the appellant was framed regarding the charge of sale of marijuana. They were eyewitnesses to the transaction between the appellant and the undercover agent. They alleged that the undercover agent was making an inquiry to the appellant about the location of a store, when the agent asked for and received a $20.00 bill in exchange for smaller denominations totaling $20.00. The appellant contends this was how he came to be in possession of $15.00 in marked bills which the State introduced into evidence against him. The appellant's witnesses also testified that a Detective Jackson was present during the transaction between the appellant and the undercover agent, and that the appellant never sold any marijuana.

In order to rebut the testimony of appellant's witnesses, the State called Detective James Smith who was examined in pertinent part as follows:

'Q. Were the witnesses that have come on the stand today and pointed their fingers at Detective Jackson, were they sitting in the Court Room?

'A. Yes, they were.

'Q. Did they testify during the Preliminary Hearing at all?

'A. One of them did.

'Q. Did, did any such testimony as you heard today come out at that time?

'A. No sir, it did not.

'MR. YOUNG: That's all.'

The appellant's sole contention is that the trial court erred in allowing Detective Smith to testify about the preliminary hearing because the appellant was not represented by counsel at that critical stage of the proceedings. Cordle v. State, 53 Ala.App. 148, 298 So.2d 77, cert. denied, 292 Ala. 717, 298 So.2d 85 (1974). The State contends that the appellant waived counsel at the preliminary hearing. In the alternative, the State contends that if the appellant did not waive counsel at the preliminary hearing, then the trial judge committed mere harmless error in allowing...