Lacey v. State, CR-92-1841
Decision Date | 06 May 1994 |
Docket Number | CR-92-1841 |
Citation | 645 So.2d 336 |
Parties | Willie LACEY v. STATE. |
Court | Alabama Court of Criminal Appeals |
Willie Lacey, pro se.
James H. Evans, Atty. Gen., and Harry Lyles and Andrew Redd, Dept. of Corrections, for appellee.
The appellant, Willie Lacey, an inmate, was found guilty following a disciplinary hearing of violating Rule 90, i.e., consuming, using, or being under the influence of alcohol, narcotics, or another intoxicant. The record indicates that the appellant was directed to provide a correctional officer with a urine specimen, which tested positive for cocaine. The appellant was then served with a notice of pending disciplinary action, and he requested no witnesses. At the disciplinary hearing, the arresting officer and the appellant testified. The appellant was found guilty as charged; he appeals the disciplinary action.
The appellant argues that a proper chain of custody for the urine specimen was not established at the hearing. The Department of Corrections contends that this issue was not preserved for review because the appellant failed to raise it to the work release director or in his original petition for a writ of habeas corpus. The record indicates that the appellant did not raise this matter by objection at the disciplinary hearing. Therefore, this matter is precluded from appellate review. See Bush v. State, 616 So.2d 394 (Ala.Cr.App.1993); Walden v. State, 552 So.2d 192 (Ala.Cr.App.1989).
The appellant argues that he received insufficient notice of the charge against him, because, he says, the notice should have included, but did not include, the statement that the drug use took place "within the last 30 days." The appellant cites Harmon v. Auger, 768 F.2d 270 (8th Cir.1985), in support of his claim. The record indicates that the appellant did not object to the adequacy of notice at the disciplinary hearing and, thus, waived this matter. See Bush v. State, supra. Cf. Nichols v. State, 629 So.2d 51 (Ala.Cr.App.1993) ( ). However, the State, in its response to the petition, addressed this claim on the merits. Counsel for the Department of Corrections stated:
In its order, the trial court also addressed this contention on the merits, finding that the appellant was afforded all due process rights. Therefore, this court may not affirm on procedural grounds not asserted previously a judgment based on some alleged substantive error. Ex parte Williams, 571 So.2d 987, 989 (Ala.1990); Tedder v. State, 586 So.2d 50 (Ala.Cr.App.1991); Henderson v. State, 570 So.2d 879 (Ala.Cr.App.1991); Owes v. State, 638 So.2d 1383 (Ala.Cr.App.1993).
In Harmon v. Auger, 768 F.2d at 276, the Eighth Circuit Court of Appeals held that inmates must be given adequate notice of the approximate date of the alleged possession, and that where the possession was proved by an EMIT-ST test, which detects the ingestion of THC, the chief intoxicant in marijuana, within a 30-day period, the inclusion of language that the marijuana was consumed within 30 days was sufficient notice of the date. 1 The Eighth Circuit Court of Appeals stated:
768 F.2d at 276. See also Spence v. Farrier, 807 F.2d 753, 757 (8th Cir.1986) (...
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