Hinkle v. State

• Decision Date: 09 December 2011
• Docket Number: CR–09–0448.
• Citation: 86 So.3d 441
• Parties: Avis Dante HINKLE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

86 So.3d 441

Avis Dante HINKLE

v.STATE of Alabama.

CR–09–0448.

Court of Criminal Appeals of Alabama.

July 29, 2011.

Rehearing Denied Oct. 28, 2011.

Certiorari Denied Dec. 9, 2011

Alabama Supreme Court 1110190.

John Harvey Wiley III, Birmingham, for appellant.

Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.

On Return to Second Remand ^*

JOINER, Judge.

Avis Dante Hinkle was convicted of one count of trafficking in cocaine, a violation of § 13A–12–231(2), Ala.Code 1975, and one count of failure to affix a tax stamp, a violation of § 40–17A–4, Ala.Code 1975, in case number CC–08–3171; one count of unlawful possession of marijuana, a violation of § 13A–12–213, Ala.Code 1975, in case number CC–08–3172; one count of unlawful distribution of a controlled substance, cocaine, having sold a controlled substance within a three-mile radius of a school and a housing project, violations of §§ 13A–12–211, 13A–12–250, and 13A–12–270, Ala.Code 1975, and one count of failure to affix a tax stamp, a violation of § 40–17A–4, Ala.Code 1975, in case number CC–08–3174; and one count of unlawful distribution of a controlled substance, cocaine, having sold a controlled substance within a three-mile radius of a school and a housing project, violations of §§ 13A–12–211, 13A–12–250, and 13A–12–270, Ala.Code 1975, and one count of failure to affix a tax stamp, a violation of § 40–17A–4, Ala.Code 1975, in case number CC–08–3175.¹ The trial court sentenced him pursuant to the Alabama Habitual Felony Offender Act (“the HFOA”) to life imprisonment for the trafficking conviction, to 15 years' imprisonment for the unlawful possession of marijuana conviction, to 30 years' imprisonment for each of the distribution convictions, and to 15 years' imprisonment for each of the 3 tax-stamp convictions, all sentences to run concurrently. See§ 13A–5–9(c), Ala.Code 1975. The trialcourt also imposed a $50,000 fine pursuant to § 13A–12–231(2)a., Ala.Code 1975, for the trafficking conviction. Hinkle filed a motion for a new trial. The parties expressly agreed on the record to extend the time for the court to rule on the motion to a date certain. SeeRule 24.4, Ala. R.Crim. P. After conducting a hearing, the court denied the motion. This appeal followed.

This Court has remanded this case twice for the trial court to assess the penalties prescribed under the Demand Reduction Assessment Act, in accordance with § 13A–12–281, Ala.Code 1975, and to impose the fees under the Alabama Forensic Services Trust Fund, pursuant to § 36–18–7(a), Ala.Code 1975, for the trafficking-in-cocaine conviction, for the unlawful-possession-of-marijuana conviction, and for each unlawful-distribution-of-a-controlled-substance conviction. The trial court has now filed its second return to our remand, which reflects that, on remand, Hinkle was assessed $8,000, as a Demand Reduction Assessment as mandated by § 13A–12–281, Ala.Code 1975, and $400 for the Alabama Forensic Services Trust Fund, as mandated by § 36–18–7(a), Ala.Code 1975.

Because Hinkle does not challenge the sufficiency of the State's evidence, a brief rendition of the facts will suffice. Antonio Smith, while working as an undercover informant, made four separate controlled buys of cocaine from Hinkle on May 22, May 30, July 5, and July 26, 2007. Each time, Smith telephoned Hinkle to set up the “buy,” and the calls were recorded by the police. A hidden video camera in Smith's car recorded each transaction, and Smith and his car were searched before and after each controlled buy. Each of these transactions occurred within three miles of a school and a housing project. The substance purchased each time was analyzed and proved to be cocaine base.

On August 3, 2007, Smith telephoned Special Agent Alicia Hanne, an agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, who was also involved with the previous drug transactions. Smith told Agent Hanne that Hinkle had a “ ‘significant amount of narcotics on him,’ ” and was “ ‘known to carry a gun.’ ” Agent Hanne and Birmingham Police Officer Julie Quigley set out in Officer Quigley's patrol car to find Hinkle based on the information provided by Smith. Based on the information provided by Smith, they found Hinkle riding in a vehicle driven by Cedric Massengale and followed the car, also based on the information provided by Smith. Massengale abruptly stopped the vehicle in the middle of the street and backed up, almost striking Quigley's patrol car. As a result, the officers initiated a traffic stop for improper backing. Officer Quigley approached the driver's side of the car while Agent Hanne approached the passenger side of the vehicle, where Hinkle was seated. Massengale told Officer Quigley that he did not have a driver's license or proof of insurance. Officer Quigley observed in plain view a Tussionex brand bottle of cough syrup by Massengale's right foot, which contained a controlled substance. The bottle's label had been torn off. Massengale admitted that the bottle belonged to him. Officer Quigley ordered Massengale to get out of the car, and she placed him under arrest for unlawful possession of a controlled substance. A search of Massengale's person revealed Lortab pills and plastic baggies.

While she was talking with Hinkle, Agent Hanne, having prior knowledge that Hinkle often carried a firearm, noticed a bulge under the passenger-side floor mat at Hinkle's feet. Agent Hanne asked Hinkle to step to the back of the car. A significant amount of drugs, which proved to be cocaine and marijuana, was found under the floor mat. Thereafter, the officers conducted an inventory search of the vehicle and found two digital scales; they also found plastic baggies in both Hinkle and Massengale's pants pockets. Subsequent analysis of the contraband revealed 83.63 grams of powder and crack cocaine and 23.06 grams of marijuana.

I.

Hinkle argues that the trial court erred when it joined the charges against him for trial. He claims that the two distribution charges should not have been consolidated with the trafficking charge because, he says, the evidence of one offense would not have been admissible at the trial of the other offenses and the consolidation therefore prejudiced him. The State contends that consolidation was proper because, the State says, the evidence of cocaine distribution was admissible to show constructive possession in the trafficking case.

Before trial, on November 24, 2008, the State moved to consolidate the indictments pursuant to Rule 13.3, Ala. R.Crim. P., arguing that the charged offenses were of the same or similar character or based on the same conduct or otherwise connected in their commission or alleged to have been a part of a common plan or scheme. (C. 114–15.) Hinkle was charged in six separate indictments with various drug-related offenses.² (C. 68–75.) The trial judge consolidated the cases on February 2, 2009. (C. 3.) Hinkle filed a motion to sever on March 31, 2009, arguing that the consolidation of the trafficking case and the distribution cases would prejudice him, that the offenses were not of the same or similar character or close in time, that they were based on different conduct or were otherwise disconnected in their commission, and that they were not part of a common plan or scheme.³ (C. 121–24.) After conducting a hearing, the trial court denied the motion to sever, finding as follows:

“THE COURT: And I do think the State presents a good argument in regard to the constructive possession issue,that actual possession is actually something that would be admissible in the case[-in-]chief in the trafficking case.

“....

“THE COURT: I recognize the trafficking and possession of marijuana [are] separate. There are the same law enforcement officers involved in that traffic stop as were involved in the making of the distribution cases.

“....

“THE COURT: It does happen four days, five days after the last sale is made.

“....

“THE COURT: I do find that the admission of 404(b)[, Ala. R. Evid.,] 2001 distributions would have a substantial prejudicial effect on the client. That is why I'm keeping those out. However, I do believe the entirety of these cases, these six indictments are so closely related in time and facts, and I think that the State does have the right to prove actual knowledge in the trafficking case by proof of the fact that he—their argument that he was involved in the distribution of cocaine. And therefore, he had actual knowledge of the drugs present in the trafficking case. So, I'm going to keep them consolidated.”

(R. 8–12.)

“A trial court is vested with substantial discretion in deciding whether to consolidate cases, and its decision as to consolidation will be reversed only for a clear abuse of that discretion. See Snell v. State, 677 So.2d 786, 789 (Ala.Crim.App.1995).” Culver v. State, 22 So.3d 499, 507 (Ala.Crim.App.2008). The consolidation of separate indictments, so that the accused may be tried in one trial, is specifically provided for in Rule 13.3(c), Ala. R.Crim. P. That rule states, in relevant part:

“If offenses ... are charged in separate indictments, informations, or complaints, the court on its own initiative or on motion of either party may order that the charges be tried together ... if the offenses ... could have been joined in a single indictment, information, or complaint.”

Rule 13.3(a), Ala. R.Crim. P., provides, in part:

“(a) Offenses. Two or more offenses may be joined in an indictment, information, or complaint, if they:

“(1) Are of the same or similar character; or

“(2) Are based on the same conduct or are otherwise connected in their commission; or

“(3) Are alleged to have been part of a common scheme or plan.”

In Ex parte Scott, 728 So.2d 172 (Ala.1998), the Alabama Supreme Court said as follows regarding the consolidation of offenses:

“ ‘In Yelder v. State, 630 So.2d 92 (Ala.Cr.App.1991), rev'd on other grounds, 630 So.2d 107 (Ala.1992), this Court he...