Glass v. State, 3 Div. 97
Decision Date | 19 January 1990 |
Docket Number | 3 Div. 97 |
Citation | 557 So.2d 845 |
Parties | Tommy Ray GLASS v. STATE. |
Court | Alabama Court of Criminal Appeals |
David G. Flack, Montgomery, for appellant.
Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.
Tommy Ray Glass was convicted of an attempt to possess controlled substances, in violation of §§ 13A-12-212 and 20-2-162, 1975 CODE OF ALABAMA1. He was sentenced to 15 years' imprisonment. He raises three issues on this appeal of that conviction, one of which necessitates a reversal and remand for a new trial. We need not address the remaining issues, since they are unlikely to arise on retrial.
The State's evidence indicated that on the evening of April 16, 1989, the defendant entered a Revco drugstore and presented the pharmacist, Mr. Mike Carmack, with a prescription to be filled. The prescription was for a "Jessie Oliver," who, defendant told Carmack, was his wife. Carmack testified that he doubted the validity of the prescription because, although he recognized the doctor's handwriting, the prescription was written for two different drugs on the same form and the prescription for each drug was in a different handwriting. Carmack told the defendant that he would have to call the physician to verify the prescription. He left the counter to do so and, when he returned, the defendant was gone.
On cross-examination, Carmack denied that a "blond-headed lady" had passed him the prescription, and he reiterated his statement that the defendant had personally handed him the prescription. Carmack stated that he had not written anything on the prescription form and, when questioned about who had filled in on the form the address as "3229 Yarbrough" and the word "None" to indicate no telephone, he stated that he did not know. Carmack testified that a clerk, Jody Young, was the only other employee working in the store on the night the defendant presented the prescription.
Jody Young testified as a witness for the defense. She stated that she had checked her time cards and had found that she was not working at Revco on the night in question. She described the procedure followed at Revco "whenever somebody comes in with a prescription and presents it" as follows: the prescription holder gives the prescription form to one of the clerks behind the counter, who then makes sure that the form contains an address and telephone number. If it does not, the clerk writes in the address and, if there is no telephone, the clerk inserts the word "none" at the proper place on the form. The clerk then puts the form in a bag labelled with the prescription holder's name, sets the bag on a shelf, and the pharmacy "takes it from there."
Ms. Young examined the prescription in this case, and stated that it included an address and the word "None," both written in blue ink and in a different handwriting from the rest of the writing on the prescription, which was in black ink.
Prior to Ms. Young's testimony and following a noon recess, defense counsel moved for a continuance in order to have two witnesses subpoenaed for the defense. Counsel informed the court that when he interviewed Ms. Young prior to trial, she told him that she had been working at Revco on the night of April 16, but that she did not remember the incident. Then, on the day of trial, Ms. Young told him that she had checked her records and he said that she had not worked on the night in question. She gave defense counsel the names of the two clerks, Ms. Johnnie Pettaway and Ms. Angela Williams, who were working on the evening of April 16.
Defense counsel told the court that during the recess he had contacted the manager of Revco in an effort to locate the two clerks, but that the manager had refused to give him any information regarding their whereabouts, stating only that they were scheduled to work the following day. Counsel then moved for a continuance, requesting that subpoenas be served on Pettaway and Williams at the Revco store the next day and stating that from their testimony he expected to prove the following:
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