Johnson v. State

• Citation: 555 So.2d 818
• Decision Date: 01 December 1989
• Docket Number: 8 Div. 219
• Parties: William Hollis JOHNSON III v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 818

555 So.2d 818

William Hollis JOHNSON III v. STATE.

8 Div. 219.

Court of Criminal Appeals of Alabama.

Dec. 1, 1989.

Cecil M. Matthews, Guntersville, for appellant.

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

BOWEN, Judge.

William Hollis Johnson III was charged by separate indictments with trafficking in marijuana and possession of cocaine. The cases were consolidated for trial, and a jury found him guilty of both charges. Johnson was sentenced to ten years' imprisonment in each case, to run concurrently, and was fined $25,000 in the trafficking case. Three issues are raised in this appeal from his convictions.

I

Johnson asserts that the verdicts were contrary to the great weight of the evidence.

The state's evidence showed that, on the afternoon of March 7, 1988, Huntsville police investigator William Payne received certain information from one Ardell Moss, a confidential informant. On the basis of this information, Investigator Payne and Moss drove to a gasoline station near Gurley, Alabama, arriving there at approximately 8:30 p.m. on March 8, 1988. Johnson arrived in a tan over brown Chevrolet automobile shortly thereafter. He "threw his hand up" in an apparent greeting to Moss, who returned the gesture.

While Investigator Payne remained in the vehicle in which he and Moss had arrived, Moss and Johnson went to the rear of the Chevrolet. Investigator Payne testified that, after the trunk was opened, Johnson "reached down into the trunk and raised up a bag--a clear plastic bag and it looked like it had something in it and it was green." Johnson then "opened a bag and reached down and took some of it and put [it] into a piece of paper and wadded it up and handed it to [Moss]." Moss brought the sample to Investigator Payne, who identified the substance in the paper as marijuana.

Johnson was then arrested by other officers on the scene. A styrofoam cooler containing several gallon bags of marijuana was found in the trunk of the Chevrolet. A small bag of marijuana was found in Johnson's pocket. This bag also contained "a small piece of cocaine." The amounts of the marijuana and cocaine were stipulated as 6.01 pounds and 2.9 grams, respectively.

Johnson testified in his own defense and maintained that the Chevrolet was not his car, that it had been loaned to him by the garage where he had left his truck for repairs. He explained that he had stopped at the gas station only to put air in one of the tires. He denied ownership of the drugs, denied that he had given a sample of marijuana to Moss, and denied that the small bag of marijuana was found in his pocket. Johnson stated that, after his arrest, he had requested that the officers fingerprint the bags of marijuana, but that they had refused to do so.

Johnson also attacked the reliability and motives of the informant Moss, who did not testify at trial, and implied that he had been set up by Moss. It was established that Moss had a prior drug-related conviction and that, at the time he furnished information to Investigator Payne, he was aware that he was about to be indicted for crimes involving stolen vehicles and that he had been told that "whatever he did on behalf of the government would be made known to the prosecutors when his trial came."

The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, "viewing the evidence in the light most favorable to the prosecution, [a] rational fact finder could have found the defendant guilty beyond a reasonable doubt." Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 (1982). Accord, Prantl v. State, 462 So.2d 781, 784 (Ala.Cr.App.1984). The evidence in this case is clearly sufficient to support the convictions. See Donahoo v. State, 505 So.2d 1067, 1070 (Ala.Cr.App.1986); Ward v State, 484 So.2d 536, 537-38 (Ala.Cr.App.1985).

In contrast, "[t]he 'weight of the evidence' refers to 'a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.' " Tibbs v. Florida, 457 U.S. at 37-38, 102 S.Ct. at 2216 (emphasis added). We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. E.g., Franklin v. State, 405 So.2d 963, 964 (Ala.Cr.App.), cert. denied, 405 So.2d 966 (Ala.1981); Crumpton v. State, 402 So.2d 1081, 1085 (Ala.Cr.App.), cert. denied, 402 So.2d 1088 (Ala.1981); Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). " '[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.' " Harris v. State, 513 So.2d 79, 81 (Ala.Cr.App.1987) (quoting Byrd v. State, 24 Ala.App. 451, 136 So. 431 (1931)). In this case, the conflicting evidence offered by the state and by Johnson simply presented a jury question, Gunn v. State, 387 So.2d 280, 282 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980), and the verdicts rendered thereon are conclusive on appeal, Roberson v. State, 162 Ala. 30, 32, 50 So. 345, 346 (1909); Bragg v. State, 518 So.2d 847, 849 (Ala.Cr.App.1987).

II

Johnson contends that the trial court erred in denying his motion for mistrial made "on the grounds that [his trial] counsel had been misled in a discovery matter concerning where the [cocaine] was found." Appellant's brief at 17.

During direct examination, Investigator Payne identified State's Exhibit 11 as "a small bag of marijuana and there's a small piece of cocaine that was in the bag that was taken off the person of the defendant, Mr. Johnson." Johnson did not object to this answer. The first question posed to Payne on cross-examination by defense counsel (who does not represent Johnson in this appeal) was: "Where was this Exhibit Eleven, please, sir?" When Payne replied, "It was in Mr. Johnson's pocket," defense counsel requested permission to approach the bench. There was then an off-the-record bench conference, followed by a hearing held out of the presence of the jury.

Defense counsel moved for a mistrial during this hearing, asserting that he was surprised by Payne's answer. He stated that he had understood from his conversation with the prosecutor earlier that morning that the bag containing the cocaine was found in the trunk of the car with the other bags of marijuana. The prosecutor stated, "I did not say it was contained in the bags. I said it was in a bag of marijuana. That's what I said, if I remember correctly." Defense counsel did not take issue with this statement, but maintained that "that is not what I understood."

Despite his initial framing of this issue, as quoted above, Johnson does not argue on appeal that the prosecutor misled him. ¹ Instead, his argument appears to be that the discovery of contraband in his pocket should have been disclosed prior to trial and that the fact that it was not supports his contention that Payne's testimony was fabricated. Aside from the obvious sophistry of this argument, the fact that contraband was found on Johnson's person was clearly inculpatory, rather than exculpatory, and the state was under no duty to disclose this evidence prior to trial. Ex parte Dickerson, 517 So.2d 628, 630 (Ala.1987); Calhoun v. State, 460 So.2d 268, 272 (Ala.Cr.App.1984). As to Johnson's allegations regarding the fabrication of Payne's testimony, the credibility of a witness is always a question for the members of the jury, for they "have seen and heard the witnesses, and are in position to sift the truth from live testimony far better than a reviewing court can perform this function by reading such testimony in cold type in a record." Autry v. State, 34 Ala.App. 225, 229-30, 38 So.2d 348, 351 (1949) (quoted in Harris v. State, supra). Moreover, this argument was clearly not advanced at trial and, consequently, is not properly before this court. See Griffin v. State, 500 So.2d 83, 89-90 (Ala.Cr.App.1986); Davis v. State, 440 So.2d 1191, 1194 (Ala.Cr.App.1983), cert. denied, 465 U.S. 1083, 104 S.Ct. 1452, 79 L.Ed.2d 770 (1984).

III

Johnson argues that the trial court erred in denying his request to review, for cross-examination purposes, a report prepared by Investigator Payne.

Rule 18.1(e), A.R.Cr.P.Temp., provides:

"Except as provided in (a) [concerning statements of the defendant], (b) [concerning statements of co-defendants or accomplices], and (d) [concerning reports of examination and tests], the discovery or inspection of reports, memoranda, witness lists, or other internal state documents made by the district attorney or his agents, or by law enforcement agents, in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses, is not authorized."

Under this rule, Johnson was clearly not entitled to discovery or inspection of this report prior to trial. See also Bogan v. State, 529 So.2d 1029, 1031 (Ala.Cr.App.1988).

Rule 16(a)(2), Fed.R.Cr.P., is virtually identical ² to our Rule 18.1(e), as quoted above, but continues: "except as provided in 18 U.S.C. § 3500." Commonly referred to as "the Jencks Act," 18 U.S.C. § 3500 provides in subsection (a):

"In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." (Emphasis added.)

Under subsection (b) of the Jencks Act, only the portion of the statement which "relates to the subject matter as to which the witness has testified" need be produced, and subsection (c) provides for in camera inspection by the trial court where the government contends that the statement contains information which...