Harrell v. State, 1 Div. 779

• Decision Date: 31 March 1989
• Docket Number: 1 Div. 779
• Citation: 555 So.2d 257
• Parties: Joe Louis HARRELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 257

555 So.2d 257

Joe Louis HARRELL v. STATE.

1 Div. 779.

Court of Criminal Appeals of Alabama.

March 31, 1989.

Rehearing Granted May 12, 1989.

Rehearing Denied June 16, 1989.

Barbara A. Brown, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Joe Louis Harrell was convicted for the unlawful possession of cocaine in violation of Ala.Code 1975, § 13A-12-212, and sentenced to 30 years' imprisonment. He was also convicted of possession of marijuana in the second degree in violation of Ala.Code 1975, § 13A-12-214, and sentenced to six months' imprisonment. Harrell raises six issues on this appeal from those convictions.

I

The defendant argues that the prosecutor used five of its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987). We find that this matter has not been preserved for review.

The record shows that, after the jury had been selected, the following occurred:

"MR. DEEN [Defense Counsel]: If we could approach before you swear'em in.

"THE COURT: Sure.

"(A sidebar conference was had, off the record.)

"(A sidebar conference was had, on the record.)

"THE COURT: Okay. Well just let the record reflect that Mr. Deen wants to make a Batson objection and we'll take it up at the next recess.

"MR. DEEN: Okay. Just let the record reflect that before the jury was empanelled I objected.

"THE COURT: Members of the jury, would you please stand and take the oath.

"(The jurors were sworn.)."

After two witnesses for the prosecution had testified, the trial judge declared a recess. After the trial judge discussed the matter of a motion to suppress with defense counsel, the following occurred "THE COURT: The other thing, you had a Batson motion. You want to state it to the Reporter? State your position.

"MR. DEEN: Yes, sir. You want me to go ahead and do it now?

"THE COURT: Go ahead and do it now and she can read ...

"(The Judge exits the courtroom.)

"MR. DEEN: The Defendant objects to the empanelling of this jury. My objection was reserved prior to the jury being sworn in and this is my opportunity to state the grounds."

Defense counsel then stated the grounds of his objection, after which the prosecutor responded by giving the reasons why she struck the five black venire persons. After the prosecutor's comments appears the following: "(Lunch recess.)" When the trial resumed there was no mention of the Batson issue. In fact, our review of the record discloses no additional reference to this matter. There is no indication in the record that the trial judge ever ruled on this objection.

"An adverse ruling is a preliminary requirement to preservation of error and appellate review.... Absent an adverse ruling the issue of the objection is not properly before this court." Van Antwerp v. State, 358 So.2d 782, 790 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978). "A party cannot claim error where no adverse ruling is made against him." Holloway v. Robertson, 500 So.2d 1056, 1059 (Ala.1986). An adverse ruling by the trial judge is a prerequisite for preserving the alleged error for appellate review. Borden v. State, 523 So.2d 508, 511 (Ala.Cr.App.1987). There is no contention that the trial judge refused to consider or rule on the objection.

It is a fundamental principle of appellate review that the reviewing court is bound by the record. "The appellant has the duty of checking his record before submitting his appeal ...; it is his burden to file a correct record." Tyus v. State, 347 So.2d 1377, 1380 (Ala.Cr.App.), cert. denied, Ex parte Tyus, 347 So.2d 1384 (Ala.1977).

The record on appeal does not contain the voir dire of the jury venire. That record does not disclose the racial composition of either the venire or the trial jury. The record does show that the trial judge did not hear or rule on the grounds of the defendant's Batson objection.

Although we strongly disapprove of the handling of the Batson objection in this case, the record contains no objection to the procedure followed in the trial court.

Under these circumstances, the record before this Court does not permit a finding of error.

II

The defendant argues that his conviction for possession cannot stand because the contraband was not abandoned property and because the seizure of that property was the result of a prior illegal search.

On January 2, 1988, Mobile Police Officer Ronald Burch went to a "skinhouse" in Mobile. His informant had told him that the defendant "was holding some rocks," and was "up inside the skinhouse." Officer Burch testified that his purpose in going to the house "was going in and finding out if he had contraband;" "I went up inside the skinhouse to check and see if the narcotics were there like I was advised they were."

There were 15 or 20 people inside the house drinking, gambling, and playing cards. Officer Burch saw the defendant and Theresa Williamson sitting at the end of a table. He observed the defendant's hand "go up under the table." The officer then ordered everyone "to get up side the wall" for his protection "so [he] could look up under the table." He looked under the table where the defendant had been sitting and "picked up some objects ['some narcotics'] off the floor." The officer asked "if anybody knew who it belonged to" but received no response. Officer Burch made no arrests and left the premises. However, he testified that he decided "to remain in the area because ... the information I received, I felt like it was good information so I was going to remain in the area to see if I could make an arrest later."

The "skinhouse" was a residential-type of house although no one lived there. It was rented by a man named Cornelius Senior.

Officer Burch "circled the block a couple of times" and "more or less hung around in the area." A short time after he left the house, Officer Burch observed the defendant standing at the passenger's side of a car with the door open. The defendant looked at Officer Burch, turned, and "hollered something." The defendant got inside the car. As the car was being driven away, Officer Burch observed the passenger door open and saw the defendant "throw some articles to the ground." These articles were "several clear plastic packages" which were later discovered to contain marijuana and crack cocaine. The officer picked up a package and began pursuing the vehicle. During this pursuit, the defendant exited the car but was soon arrested, as were the other two occupants of the car.

We agree with the Attorney General in his argument that the defendant had no standing to object to the search at the skinhouse.

Officer Burch's mere presence in the skinhouse was not a search. Maryland v. Macon, 472 U.S. 463, 468-69, 105 S.Ct. 2778, 2781, 86 L.Ed.2d 370 (1985). "If a police officer has entered as would any member of the public, it is not a search for the officer to conduct himself therein as might be expected of any other person who would enter." W. LaFave, 1 Search and Seizure § 2.4(b) at 430 (2nd ed. 1987). "Quite clearly, the officer is 'entitled to take note of objects in plain view.' He may also examine merchandise in the same fashion that a prospective customer could be expected to do." Id.

The defendant has made no showing that he had any standing to object to what occurred in the skinhouse. From the record:

"THE COURT: Is there any reasonable expectation of privacy in this place?

"MR. DEEN [Defense Counsel]: We don't know."

The defendant has failed to carry his burden of proving that he had a legitimate expectation of privacy in the skinhouse. Rawlings v. Kentucky, 448 U.S. 98, 104-05, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); Collier v. State, 413 So.2d 396, 400 (Ala.Cr.App.1981), affirmed, Ex parte Collier, 413 So.2d 403 (Ala.1982). "Whether [the defendant] was legitimately on the premises is a relevant but not controlling or determinative factor in deciding one's expectation of privacy." Collier, 413 So.2d at 400; Ramires v. State, 492 So.2d 615, 619 (Ala.Cr.App.1985). Merely "[b]eing a frequent visitor to premises is not sufficient to bring into play the Fourth Amendment rights against unreasonable search and seizure." Grice v. State, 527 So.2d 784, 787 (Ala.Cr.App.1988).

The seizure of the packages of marijuana and cocaine discarded by the defendant was proper under the abandoned property exception to the general rule requiring a search warrant. Barrow v. State, 494 So.2d 834, 836 (Ala.Cr.App.1986); Mitchell v. State, 423 So.2d 904, 906 (Ala.Cr.App.1982). Compare Harrell v. State, 475 So.2d 650 (Ala.Cr.App.1985), involving this same defendant.

" 'In the law of search and seizure ... the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. * * * In essence, what is abandoned is not necessarily the defendant's property, but his reasonable expectation of privacy therein.

" 'Where the presence of the police is lawful and the discard occurs in a public place where the defendant cannot reasonably have any continued expectancy of privacy in the discarded property, the property will be deemed abandoned for purposes of search and seizure.' " W. LaFave, 1 Search and Seizure § 2.6(b) at 465, quoting from City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365 (1975).

III

The informant in this case was a mere "tipster" and was not a participant in the crime and did not provide probable cause for the arrest. Therefore, the State was not required to disclose his identity. Ex parte Pugh, 493 So.2d 393 (Ala.1986); Self v. State, 420 So.2d 798 (Ala.1982); Lightfoot v. State, 531 So.2d 57, 58-59 (Ala.Cr.App.1988). In Pugh, 493 So.2d at 397, the Alabama Supreme Court rejected the proposition...