Gilliland v. State

• Decision Date: 27 November 1984
• Docket Number: 4 Div. 328
• Citation: Gilliland v. State, 466 So.2d 151 (Ala. Crim. App. 1984)
• Parties: Terry Lee GILLILAND v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 151

466 So.2d 151

Terry Lee GILLILAND v.STATE.

4 Div. 328.

Court of Criminal Appeals of Alabama.

Nov. 27, 1984.

Rehearing Denied Jan. 8, 1985.

Certiorari Denied March 29, 1985

Alabama Supreme Court 84-401.

J. Allen Cook, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found Terry Lee Gilliland guilty of possession of marijuana, a controlled substance, and the court fixed his punishment at imprisonment for six years and imposed a fine of $1,000.00.

According to the undisputed evidence, the small apartment at which appellant lived with his wife, Mrs. Terry Gilliland, and their three-year-old daughter at 402 1/2 Smith Street, Andalusia, was searched pursuant to a valid search warrant.The defendant was not at the home at the time but was working elsewhere in or near Andalusia.Mrs. Gilliland was present at the time of the search and made no protest of the rather thorough search of the apartment consisting of a living room combined with a bedroom on one side and a kitchen and a bathroom on the other side.

The law enforcement authorities executing the search warrant found at various places within the apartment, including the drawers of a chest of drawers in the living room and on the refrigerator in the kitchen, the following items:

Four large bags of plant material identified by an expert witness as marijuana; two other bags of such plant material; two roach clips, described in the testimony as clips to hold marijuana cigarettes, a metal tray with plant material consisting of marijuana therein, two roaches, described as the stubs or butts of partly smoked marijuana cigarettes, one set of scales and plastic bags, and a bottle of two kinds of pills, which according to the undisputed evidence were not controlled substances or illegal drugs and have no material bearing on the issues in the case.

Mrs. Gilliland was arrested and taken to jail on the afternoon the search of the apartment was conducted and soon after the items listed above were seized by the law enforcement authorities.According to the testimony of Deputy Sheriff Jerry Newton, the appellant came to the County Jail about five o'clock that afternoon.He was then processed by virtue of the warrant of arrest that had been issued for him for possession of the marijuana and, according to the testimony of Officer Newton, "approximately thirty to forty-five minutes later" Officer Newton advised him of his rights "according to the Miranda Warning" and he was shown a copy of the receipt for the items that had been seized.Officer Newton's testimony continued as follows:

"Q.And did he make a statement to you at that time?

"A.Yes, ma'am, he did.

"Q.Did you tell him any thing else before he made a statement?

"A.No, ma'am.Not after I advised him of his rights and then he signed a receipt for the stuff we had taken out of the house, no, ma'am.

"Q.Had you already questioned his wife?

"A.Yes, ma'am.

"Q.And had she made a statement to you as to whether or not she had?

"A.Yes, ma'am.

"Q.Did you, before you took the statement from Mr. Gilliland, did you tell him what his wife had told you?

"A.Yes, ma'am.I did.

"Q.And what did Mr. Gilliland say to you on that occasion?

"A.He said that is the way it happened.He said it was, the marijuana, was brought there and left on Sunday night before we served the search warrant on Monday and the fellow that owned the marijuana was supposed to have picked it up on Monday afternoon.

"Q.And is that essentially the story you received from Mrs. Gilliland and told him before he spoke to you?

"A.Yes, ma'am.

"...

"Q.And did you question him any further regarding this incident?

"A.Yes, ma'am.I asked him--I think I had asked him who it was that brought it over.And then he said it was like she said, a fellow named Bo Bo.

"Q.And did he tell you anything else regarding this incident?

"A.No, ma'am, he didn't.That was the extent of the conversation.

"Q.Did you question him any more about why it was brought, or how they knew this fellow Bo Bo, or anything else about it?

"A.That's all they would ever say.That it was just brought there by the subject on Sunday and he just wanted to leave it there during the day and he would pick it up that afternoon and they didn't know what his last name was or nothing like that.

"Q.Did they know why it was left with them?

"A.No, ma'am, they never would give an explanation for that."

Mrs. Gilliland was called as a witness by the defendant, but, on advice of her attorney, she declined to testify.

The defendant testified comprehensively to the effect that he was not guilty of the possession of marijuana.A significant part of his testimony is as follows:

"Q.Now, you heard them testifying about that, do you happen to remember by any means just where you were that night [sic]?

"A.Yeah, I was painting the inside and outside on a house.And I was doing the inside work in the evenings and the outside during the day.

"Q.Well, when did you first find out anything about the presence of these things in your house, if you know they were in your house at any time?

"A.Well, the baggies and the scales and the pills, my wife has been thyroid and water pills the last nine or ten years.And I didn't know nothing about the other stuff.You see, my sister-in-law, she got ahold of me, I think I was out on a job or something.And she told me they had arrested my house [sic] and got my wife and I went up there.Well, I didn't go right straight up to the jail house, I had a young man working with me and I wanted my work to go on so I got ahold of him to make sure it would go on and then I went up to the jail house.

"...

"Q.Now, did you ever have anything in this world to do with possessing any of this stuff there that's all stretched out there on the counter and you heard testified about and identified as marijuana?Did you ever have any occasion to possess any stuff around and about here or use it at all, or any of the kind?

"A.Yeah, them stat, them hemostats [apparently meaning the items that had been denominated by State's witnesses as "roach clips"].I glaze windows, and I use them to ...

"Q.That is about all you used them for?

"A.I use them to get splinters out from under my fingernails.

"Q.In other words, you are saying you had no connection with making any use, possession or anything else with the marijuana in any form or fashion, is that right?

"A.That's right."

During the cross-examination of defendant, he testified:

"Q.Youwork during the day?

"A.Yes, ma'am.

"Q.But you were home in the evenings with your wife and daughter, were you not?

"A.Not all of the time.

"Q.Well, when were you absent during this period of time?

"A.When I worked.Sometimes I would be working on the outside and people would want me to paint around the windows and do stuff on the inside.And then in the evenings I would work on the inside, you know, two or three hours.

"Q.But after your worked two or three hours I presume you went home?

"A.I was usually home about 9:30 or 10:00.

"Q.And there until you went to work the next morning?

"A. 6:00 sharp.

"Q.Yousaid these [which the writer considers was a reference to the items defendant called hemostats and others called roach clips], is that correct?

"A.Uh-huh.

"Q.Where did you get them?

"A.I don't even know.I don't know.

"Q.Youdon't recall where you bought a hemostat?

"A.Yeah, let's see ...

"Q.It is a surgical instrument, isn't it?

"A.Yeah.

"Q.Did you buy it in a surgical store?

"A.No, I might have got them at a yard sale or something.I can't remember.I use them for getting splinters out.My daughter runs barefoot a lot and they are just as good.There's plenty of use for them.You can clamp them on any stick and they will come out.

"Q.Youcan clamp them down on a marijuana cigarette too, can't you?

"A.Yes.

"Q.In fact, that is a common use of them by the layman other than surgeons, is that right?

"A.I don't really know what they are used for, but I know they are good for a lot of things.

"Q.They sure are.

"A.I was a maintenance man and I used them too.

"Q.Youused this to get splinters out also?

"A.No, ma'am.

"Q.Where did you get this?

"A.I don't know.

"Q.Did you get them at the same yard sale, you think?

"A.I don't know.

"Q.Youdon't know where you got this?

"A.No.

"Q.Do you know how long you have had this?

"A.No, I don't.

"Q.This belongs to you and your wife?

"A.Yes, ma'am.

"Q.Do you remember where you got this?

"A.No. I know it sounds like a [sic, but which we construe as a typographical error and should be I] have a vague memory, but I just don't--I ain't home a lot.I just come and go.It might have been a gift.

"Q.Do you know how it appeared in your dresser drawer, the marijuana and the roach clip lying amongst the marijuana?

"A.I don't understand.Do you want me to know how I feel toward it?

"Q.No, I want you to tell me how did it get in your dresser drawer there amongst your clothing, both the marijuana with the roach clip and another sealed bag of marijuana in it?

"A.I'm not even sure that all that clothing and stuff was in the first drawer.If I remember right it was--

"Q.Didn't you just tell me that is where you kept your clothing was in the drawer there in the living room, in the chest of drawers.

"A.Yes.

"Q.Okay.

"A.But it was the only dresser drawer we had and I think in the top drawer was just junk, like cameras and films and everything.

"Q.Now, you think that that is not where your clothes were?

"A.No, I just said I'm not sure.

"Q.Well, you don't know where you kept your clothes?

"A.Yeah, in the dresser.

"Q.But now you say you are not sure?

"A.It was on the dresser in the house.My clothes was in one of them drawers I know.

"Q.But you don't remember now which one it was in?

"A.No.

"Q.Youare just sure you didn't keep it in with the marijuana?

"A.I still think, you know,...