Kelley v. State, 1 Div. 384
Citation | 519 So.2d 1368 |
Decision Date | 10 March 1987 |
Docket Number | 1 Div. 384 |
Parties | Stanley Wayne KELLEY v. STATE. |
Court | Alabama Court of Criminal Appeals |
John S. Gonas, Jr., of Gonas & McHale, Mobile, for appellant.
Don Siegelman, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.
The appellant was found guilty of driving under the influence of alcohol, in violation of § 32-5A-191(a)(1) and (2), Code of Alabama (1975), in the District Court of Baldwin County. He was ordered to pay a fine of $300.00 plus court costs and to attend D.U.I. school. The appellant thereafter appealed his conviction to Baldwin County Circuit court and he was granted a trial de novo. He was again found guilty and was sentenced to seven days in the Baldwin County Jail and fined $1,000 plus court costs.
Larkus M. Smith, a state trooper with the Department of Public Safety, was the sole witness for the State and he testified that he was on patrol on the night in question when he first observed the appellant's automobile. As he followed the vehicle, Trooper Smith testified, he observed the car weave erratically across the center line of the highway and he therefore attempted to stop the vehicle by turning on the patrol car's blue lights. The appellant's vehicle continued travelling for approximately three-quarters of a mile to a mile before it stopped. Trooper Smith further testified that his partner got the appellant out of the car and escorted him back to the patrol car, a distance of approximately 20 to 30 feet. Trooper Smith stated that he observed the appellant's walk and that the appellant appeared "unsure of his walk." Trooper Smith further testified that there was a "strong odor of fermented beverage coming from [the appellant's] person"; specifically from his breath. Trooper Smith testified that when he stopped the vehicle, the appellant was the driver and there was another passenger in the car. He observed a beverage in the car, "a cup which had the odor of fermented beverage coming off it." Trooper Smith also testified that he took the appellant to the Daphne Police Department, where he administered a test to determine the alcohol content of the appellant's blood. The results of the test by the Intoxilyzer 5000 showed a blood-alcohol content of 0.21 percent.
Gordon Sells, the passenger in the appellant's vehicle, was the only witness for the defense. He testified that he had been with the appellant for approximately six to seven hours before they were stopped and that he had not seen the appellant consume any alcoholic beverages. He testified that they had been together shooting billiards in a tournament and that although he had seen a plastic cup in the appellant's possession, he did not see any beer or hard liquor.
The appellant claims that his sentence is disproportionate to the crime committed and thus violative of the Eighth Amendment. The record shows that the sentence imposed is within the statutory boundaries for this offense and this court will not overturn the trial court's decision absent a showing of abuse of discretion. Harris v. State, 500 So.2d 1292 (Ala.Cr.App.1986); German v. State, 500 So.2d 478 (Ala.Cr.App.1986); Tice v. State, 491 So.2d 1065 (Ala.Cr.App.1986); Cade v. State, 491 So.2d 1075 (Ala.Cr.App.1986). Furthermore, Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), is inapplicable to sentences of less than life without parole. Atkins v. State, 497 So.2d 598 (Ala.Cr.App.1986); Maddox v. State, 502 So.2d 790 (Ala.Cr.App.1986); Ex parte Harbor, 465 So.2d 460 (Ala.1985).
The appellant argues that the trial court committed reversible error by admitting into evidence a card issued to Larkus M. Smith by the State Department of Public Health to operate the Intoxilyzer 5000. At trial, the defense counsel objected to the admission of the card because "it's a copy and not an original." However, Trooper Smith testified that he was certified to operate this machine. The prerequisite for the admissibility of the test results is satisfied when an officer testifies that he was so certified and a copy of the certification is admitted into evidence. Such testimony satisfies the requirement that there be a showing that the person administering the test has a valid permit for such purposes issued by the State Department of Health. Bush v. City of Troy, 474 So.2d 164, 167 (Ala.Cr.App.1984). See also Bagony v. City of Birmingham, 365 So.2d 336 (Ala.Cr.App.1978).
The appellant argues that he was deprived of a fair trial because of remarks made by Trooper Smith concerning the appellant's admission of guilt. The record indicates that the following transpired at trial:
Strough v. State, 501 So.2d 488 (Ala.Cr.App.1986).
Brown v. State, 492 So.2d 661, 663 (Ala.Cr.App.1986). See also Proctor v. State, 391 So.2d 1092 (Ala.Cr.App.1980); Stennett v. State, 340 So.2d 65 (Ala.1976).
Woods v. State, 460 So.2d 291, 295 (Ala.Cr.App.1984).
Because the trial court acted immediately to exclude the objectionable remarks volunteered by Trooper Smith, the error was cured.
The appellant argues that the trial court committed...
To continue reading
Request your trial-
Ex parte Mayo
...the Persian Gulf War in early 1991.5 The earliest case we have found in which a test was administered on an I-5000 is Kelley v. State, 519 So.2d 1368 (Ala.Crim.App.1987), decided on March 10, 1987. Cf. Stamp v. State, 495 So.2d 725 (Ala.Cr.App.1986), which refers to "the new Intoxolizer mac......
-
Grier v. State
...and giving a proper instruction to the jury. See Shack v. State, 236 Ala. 667, 668, 184 So. 688, 689 (1938); Kelley v. State, 519 So.2d 1368, 1370 (Ala.Cr.App.1987). Here, the appellant received the practical benefit of his motion to suppress in that the jury never heard any evidence concer......