Kenny v. State, 1 Div. 316
Decision Date | 15 May 1973 |
Docket Number | 1 Div. 316 |
Citation | 51 Ala.App. 35,282 So.2d 387 |
Parties | Deborah Renee KENNY, alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
Selling marijuana: sentence, nine years imprisonment.
A State undercover agent got in touch with an informant as to buying marijuana. Later the agent picked up the informant. The two drove in the agent's car to a rendezvous where a man in a Volkswagen told the agent to follow him to a darker place. There with the informant in his car the agent bought $150 worth of marijuana (fifteen 'lids') from the appellant who had come from the Volkswagen into the agent's car. Thus, from the State's case the informant was present throughout the entire transaction.
The trial judge refused to order the agent to reveal the name of the informant so that the defense could have him or her served with an instanter subpoena. This ruling was error. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.
Alabama recognizes the testimonial privilege of the government (in this case the State) to cloak the identity of those who supply information as to wrong-doers with a protective mantle of secrecy. Davis v. State, 46 Ala.App. 45, 237 So.2d 635, was such a case involving a search warrant. See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.
Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.id 639, expresses an exception to this testimonial privilege However, after the State rested, defense counsel, apparently on a hunch, called as a witness the person who was the wanted informer. Thus, the earlier erroneous ruling became moot.
where, as Stewart, J., pointed out in McCray v. Illinois, supra, the issue is guilt or innocence (i.e., conviction beyond a reasonable doubt) as distinguished from that of reasonable probable cause as in the issuance of a search warrant. In the instant case the Rovario exception was before the trial court. The defendant, under both State and Federal constitutions, is entitled to compulsory process for witnesses.
Appellant in her first proposition of law argues that the Alabama Uniform Controlled Substance Act is 'absured and arbitrary to the point of violating the Equal Protection Clauses * * *' State and Federal because it includes marijuana (marihuana) with heroin, morphine, etc.
The persuasiveness is eloquence wasted because our Supreme Court and this Court have both, since the filing of appellant's brief, ruled that such a classification was reasonable. Boswell v. State, 290 Ala. 349, 276 So.2d 592; Warren v. State, Ala.App. (Ms.Mar. 13, 1973).
The same reasoning covers the further claim of the Act's breaching § 45, Const.1901, which requires that an act relate but to a single subject. Whether the cannabis chemistry is psychogenetic or physical in its effects, we think that the legislative determination and grouping of marijuana with the so called hard drugs is reasonable within decided principles of constitutional law.
Before evidence was adduced the record shows the following:
We think that the failure of defense counsel to object or ask for a mistrial precludes our finding error in the assistant District Attorney's using the word 'separation' in the presence of the jury.
When a separation of the jury is shown to have occurred in the trial of a felony indictment then the State has the burden of showing that no one approached any of the jurors to influence the verdict. Smith v. State, 39 Ala.App. 501, 105 So.2d 662; Wright v. State, 38 Ala.App. 64, 79 So.2d Michie's Code 1958, T. 30, § 97(1) regulates separation by consent in counties populated by 140,000 or more under the latest census; this covers Mobile County. Among other things this Act provides:
66; Chappelle v. State, 267 Ala. 37, 99 So.2d 431.
Strictly speaking, the prosecutor's question does not fall within the impropriety denounced by the statute. Since the point was neither reserved by objection before the jury went to lunch nor by way of a ground in a motion for new trial, the State was given no opportunity in the trial court to exonerate itself from the pall cast by the separation. Moreover, the agreement to allow the separation was made with the knowledge of the prosecutor's question going immediately before the in camera conference. We find no error.
The trial judge refused requested charge No. 6, which reads as follows:
'I charge you, members of the Jury, that you must find the Defendant not guilty, if the conduct of the Defendant upon a reasonable hypothesis is consistent with her innocence.'
One of appellant's supporting citations is Du Bose v. State, 19 Ala.App. 630, 99 So. 746, wherein Bricken, P.J., wrote that (hn 6) it was improper to deny charge 2 of the same tenor. However, the Du Bose opinion, Supra, concludes with the following majority declaration:
'SAMFORD and FOSTER, JJ., concur in the reversal of this case, but as to charge 2 refused to the defendant they are of the opinion that under the authorities of Davis v. State, 188 Ala. 59, 66 So. 67, and Edwards v. State, 205 Ala. 160, 87 So. 179, the charge was properly refused.'
Since the Court of Appeals was always a three judge court, the quoted matter was the majority opinion on this point.
Of a charge similar to No. 6 here refused Judge Carr wrote in Foster v. State, 37 Ala.App. 213, 66 So.2d 204 (concerning charge 52) therein:
'Our study of the authority leads to the conclusion that in the earlier cases the appellate courts did not have a tendency to condemn written instructions because they were not based on the evidence. Charge 52 in the case at bar does not contain this hypothesis. Even so, it was approved in the following cases: Gregory v. State, 140 Ala. 16, 37 So. 259; Brown v. State, 118 Ala. 111, 23 So. 81; Howard v. State, 151 Ala. 22, 44 So. 95; Wilson v. State, 14 Ala.App. 87, 71 So. 971; Baker v. State, 19 Ala.App. 437, 97 So. 901; Clayton v. State, 23 Ala.App. 150, 123 So. 250.
Even though the Attorney General has neglected to file a supplemental brief under Code 1940, T. 15, § 389, wee cannot ignore our duty to conduct independent research. In this case the statute has turned into another 'lazy lawyer' enactment. 1
Accordingly, we follow Foster and hold that the refusal of charge 6 was free from error.
Here, in closing argument we find:
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