Hall v. State

• Decision Date: 16 October 1979
• Docket Number: 3 Div. 65
• Citation: 377 So.2d 1123
• Parties: Allen HALL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1123

377 So.2d 1123

Allen HALL v. STATE.

3 Div. 65.

Court of Criminal Appeals of Alabama.

Oct. 16, 1979.

Rehearing Denied Nov. 20, 1979.

Frank W. Riggs, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen. and Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the unlawful sale of cocaine contrary to the provisions of Alabama Code Section 20-2-70 (1975). Sentence was fixed at eight years' imprisonment. Three issues are presented on appeal.

I

Present in the courtroom at the beginning of the defendant's trial was a group of eighth grade students who were "a part of an organized regular scheduled program whereby every eighth grader in the City and County of Montgomery comes through the courthouse". Defense counsel objected to their presence.

"I would move to exclude that group of students from the courtroom on the grounds that their presence here is something that is arranged for and I think it has a prejudicial effect on my client's opportunity for a fair trial because I'm afraid that the jurors might be affected in their deliberations in this case and might be more inclined to find my client guilty in the presence of a group of eighth graders than they would if they were not subjected to that influence."

This motion was overruled. Defense counsel did not offer to prove that this "undesirable influence" existed and, after his objection was overruled, did not further pursue the matter. There was no motion for a new trial. The objection is not to any particular conduct of the group or any one of them, but to their mere presence in the courtroom.

While the defendant is entitled to a trial free of any extraneous influence that might be to his prejudice, Hammond v. State, 26 Ala.App. 391, 160 So. 900 (1935), a criminal trial should be public. Jackson v. Mobley, 157 Ala. 408, 47 So. 590 (1908). If the conduct of a spectator interferes with the administration of justice, he may be removed. Williams v. State, 57 Ala.App. 158, 326 So.2d 686, cert. denied, 295 Ala. 428, 326 So.2d 692 (1975). Much is left to the discretion of the trial judge in this regard. McGuire v. State, 239 Ala. 315, 318, 194 So. 815 (1940). Although McGuire was a prosecution for the murder of a street car conductor, the trial court refused to exclude from the courtroom some conductors or motormen who entered during the trial and who were in uniform. The appellate court upheld the judge's action:

"During the entire trial the record gives no indication of any feeling or prejudice or the slightest disorder; and the mere fact that it was a conductor who was killed gave no just reason to exclude these men from the courtroom. This too was largely a matter of discretion, with no abuse thereof shown." 239 Ala. at 318, 194 So. at 816.

As McGuire indicates, even persons related to the victim have been properly allowed to remain in the courtroom absent prejudicial conduct on their part. Howard v. State, 273 Ala. 544, 142 So.2d 685 (1962) (daughter and wife of victim in murder prosecution); Kendrick v. State, 55 Ala.App. 683, 318 So.2d 378 (1975) (father of victim in case of assault with intent to ravish); Brodka v. State, 53 Ala.App. 125, 298 So.2d 55 (1974) (brother of deceased in murder prosecution); Pollard v. State, 12 Ala.App. 82, 68 So. 494, reversed on other grounds, Ex parte Pollard, 193 Ala. 32, 69 So. 425 (1915) (victim's wife and children in murder prosecution).

The comments of the court in Pollard, 12 Ala.App. at 89-90, 68 So. at 497, are enlightening. "No objectionable conduct is shown or complained of otherwise than the mere presence of the parties. The question presented is purely one of the trial court's discretion, and nothing is disclosed by the record showing an abuse of that discretion. Courts exist for the administration of justice, and in the conduct of trials in general much must, of necessity, and in the very nature of things, be left to the discretion of the court charged with the duty of administering justice, and having the inherent power to regulate such matters in the trial forum. The court is charged with a high and important duty not without its difficulties in taking proper care to effect the object of according to the accused a fair and impartial trial while having due regard to interests of the state. No legal reason except that addressed to the court's discretion was assigned why the widow and children should have been excluded or removed to a different part of the courtroom, and we know of no rule of law that would authorize a court to exclude spectators or other persons from the courtroom, or remove them from the view of the jury, during the progress of a public trial of this nature, except for misconduct or some cause that appealed to the sound discretion of the court in administering substantial justice; and it is only an abuse of that discretion that this court can review. . . . "

The record does not support a finding of prejudice to the defendant from the presence of the students in the courtroom. This was a matter within the discretion of the trial judge, and, no abuse being shown, his judgment must be upheld.

II

The defendant alleges that there was a fatal gap in the sufficiency of the evidence to support his conviction because the alleged sale was made to an informant who did not testify and was made out of the presence of any law enforcement officer. The defendant contends that, in the absence of direct proof that the informer received the cocaine from the defendant, the possibility arises that he might have received it from some unidentified person, or that the cocaine was his, cached in the residence for such an opportunity.

The cases cited by the defendant in support of his contention

"are merely illustrations of the rule that where the evidence of guilt is purely circumstantial it is legally insufficient unless it is so complete as to exclude every reasonable hypothesis of innocence. Under this rule it is held that where the case of the People consists solely of evidence that an informer was given money with which to purchase a narcotic, was seen to contact the defendant and afterwards returned with a narcotic, the evidence is insufficient in the absence of evidence that the informer did not have the narcotic on his person when he left or the money when he returned and no evidence that the defendant delivered anything to the informer."

"Even when there is no search of the informer and no direct evidence that the informer received anything from the defendant, identification of the defendant as the supplier of the narcotic may be established by other evidence which reasonably and logically tends to prove that fact."

People v. Ollado, 246 Cal.App.2d 608, 55 Cal.Rptr. 122, 123-124 (1966).

The fact that no witness saw the exchange of money and narcotics between the informer and the defendant is not fatal to the prosecution if the identification of the defendant as the supplier of the narcotics may be established by other evidence which reasonably and logically tends to prove that fact.

On the evening of July 21, 1978, Don Williams, an undercover agent for the Narcotics Enforcement Division of the Alabama Beverage Control Board, went to the Wetumpka residence of an informant, Charles Gates. Agent Williams and Gates telephoned the defendant although the contents of that conversation, which Williams overheard, were not disclosed.

After this call, Williams and Gates went to an area near 2206 Greenville Street in Montgomery. There Agent Williams conducted a "cursory search" of informant Gates "to ascertain that he had nothing on his person other than what I provided for him or gave to him prior to going into the residence of Allen Hall", the defendant. Finding nothing on Gates, Williams gave him four hundred and ten dollars.

A pickup truck driven by the defendant was parked outside the residence on Greenville Street. There were no "strange automobiles" there and the "cars there were known to be those of" the defendant. The defendant answered the door and Gates introduced him to Agent Williams. Gates and Williams then waited in the living room while the defendant finished his business on the telephone in another room of the house.

The defendant returned after approximately five minutes and asked Gates to go to the rear portion of the house with him. Agent Williams heard loud shouting to the effect that the defendant "was displeased or upset with the fact that the confidential informer had brought a stranger to the house". The defendant stated "don't you ever bring an S.O.B. to this house again without first telling me".

A "short time" passed and the defendant returned to the living room and placed a record on the stereo. The defendant then returned to the rear portion of the house.

Within two or three minutes the defendant and Gates returned to the living room. Gates was carrying a Merit cigarette carton and placed it on the coffee table. The carton was open and contained some yellow capsules in a plastic bag and two small packages of white powder later determined to be cocaine.

Agent Williams and the defendant then had a brief conversation in which the...