Lane v. State
| Citation | 644 So.2d 1318 |
| Decision Date | 25 March 1994 |
| Docket Number | CR-92-1392 |
| Parties | Hubert LANE, Jr., alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Benton H. Persons, Andalusia, for appellant.
James H. Evans, Atty. Gen., and Jean Brown, Asst. Atty. Gen., for appellee.
The appellant, Hubert Lane, Jr., appeals from his conviction for unlawful distribution of a controlled substance, a violation of § 13A-12-211, Code of Alabama, 1975. The trial court sentenced the appellant pursuant to the Habitual Felony Offender Act and also enhanced his sentence because the unlawful distribution occurred within a three-mile radius of both a school and a public housing project. See §§ 13A-12-250 and 13A-12-270, Code of Alabama 1975. The appellant was sentenced to life imprisonment plus 10 years. The appellant was ordered to pay attorney fees and $50 to the victim's compensation fund.
The evidence adduced at trial tended to establish the following. Mary Luther testified that on October 30, 1991, she and Art Parker were assisting the police in making undercover drug purchases. Luther stated that on October 30, 1991, she was in her vehicle when the appellant stopped her by flashing the lights of his vehicle. According to Luther, the appellant asked her what she needed and she responded, "Two twenties." Luther stated that the appellant had her follow him to the parking area of a ballpark, where he handed her two "rocks" of cocaine. Luther testified that she paid the appellant $40 for the cocaine. Luther testified that she was wearing a recording device at the time of the purchase and that the drug purchase was recorded. Arthur Parker testified that he was with Luther at the time and that he witnessed Luther purchase the substance from the appellant.
Luther stated that after she purchased the substance, she wrapped it in cellophane and gave it to a police officer, Mike McDonald. She stated that the substance she gave the officer was the same substance the appellant had given her and that it had not been altered.
Officer Mike McDonald stated that he arranged for Luther to make the purchase and assisted in equipping her with a recording device so that he could monitor the drug purchase. McDonald stated that after the purchase he met with Luther and she gave him the substance that she had purchased from the appellant. McDonald testified that he placed the substance in an envelope which he sealed and initialed and which was placed in the evidence room of the Opp Police Department. McDonald stated that the next day he took the substance to the forensic lab in Enterprise for testing. He stated that while the substance was in his possession it was not altered.
Mark Crews testified that he is employed by the Alabama Department of Forensic Sciences and that he analyzed the substance provided by McDonald. Crews stated that he determined that the substance was cocaine and that after he analyzed the substance he resealed the substance in a package. Marcus Nawlin, an investigator with the Opp Police Department testified that he retrieved the resealed package from the Alabama Department of Forensic Sciences and that he locked it in an evidence locker at the police department, where it remained until it was brought to court for the appellant's trial.
The appellant testified that his name was "Herbert Lane" rather than "Hubert Lane, Jr.," as set forth in the indictment. He stated that he has never been known by the name of Hubert Lane, Jr. He further testified that on July 11, 1990, he had his birth certificate corrected to reflect his name as "Herbert Lane" rather than "Hubbett Lane, Jr." as originally spelled. The appellant testified that he had been convicted previously in Covington County under the name of Herbert Lane, but acknowledged that one of the documents regarding his prior convictions reflect his name as Hubert Lane, Jr. The appellant also denied that he had ever sold cocaine to Mary Luther.
The appellant contends that the trial court erred in failing to dismiss the indictment against him and erred in failing to grant a judgment of acquittal because, he says, the indictment does not properly name him. The appellant's argument is without merit.
The appellant filed a written motion to dismiss the indictment and a motion for a more definite statement before he entered his plea of not guilty, but in those motions the appellant did not raise the ground of misnomer. The appellant failed to bring this specific ground to the attention of the trial court until after the close of the State's evidence at trial. The appellant waived arraignment, but entered a formal plea of not guilty in writing. This Court has held that by entering a plea at arraignment, an accused waives any irregularities in the indictment unless the indictment is so defective that it leaves the accused unaware of the nature and cause of the charges against him. Ex parte Tomlin, 443 So.2d 59, 62 (Ala.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984); Odom v. State, 625 So.2d 1171 (Ala.Crim.App.1992). When the accused pleads not guilty to a charge in an indictment without raising any question about the name appearing on the indictment, he admits that the name by which he is called in the indictment is his true name. Burnette v. State, 50 Ala.App. 630, 282 So.2d 70, 71 (1973). The appellant, although he knew of the alleged error, did not bring the misnomer to the attention of the trial court until after the State had presented all of its evidence and after he entered a plea of not guilty. Therefore, we hold that any irregularity in the indictment was waived for failure to timely and specifically bring it to the attention of the trial court. Odom, 625 So.2d at 1172.
Additionally, we hold that error, if any, in the spelling of the appellant's name in the indictment did not affect the substantial rights of the appellant. The appellant's own documents introduced as evidence reflected that he had been known by other names. His birth certificate evidenced that the appellant was known as Hubett Jr. Lane, and documentation regarding a prior conviction reflected that he was known as Hubert Lane, Jr. Therefore, we cannot hold that the trial court erred.
The trial court properly denied the appellant's motion to dismiss the indictment and the appellant's motion for a judgment of acquittal on the grounds of the alleged misnomer in the indictment.
The appellant argues that the trial court improperly admitted the State's exhibit, which was identified by the State's expert as cocaine, because, he says, the State failed to prove the proper chain of custody for the cocaine.
Mary Luther testified she purchased the cocaine from the appellant and that she wrapped it in cellophane and gave it to Officer McDonald. McDonald testified that Luther gave him the substance that she purchased from the appellant and that he placed the substance in an envelope, which he sealed and initialed. He placed the sealed envelope in the evidence room of the Opp Police Department until the next day, when he took the substance to the forensic lab in Enterprise for testing. He stated that while he had possession of the substance it was not altered. The record appears to reflect that Rhonda Hatcher, an employee of the forensic lab, received the evidence on behalf of the forensics lab.
Mark Crews testified that he is employed by the Alabama Department of Forensic Sciences and that he analyzed the substance provided by McDonald. Crews testified that the package was sealed at the top by the officer who brought it to the laboratory. He testified that the package did not appear to have been opened after the officer had sealed it and after it was given to Hatcher. Crews stated that when he opened the package to analyze the contents, he opened it from the bottom of the package. Crews stated that the substance was cocaine and that after he analyzed the substance he resealed the substance in the package.
Marcus Nawlin testified that he retrieved the resealed package from the Alabama Department of Forensic Sciences and locked it in an evidence locker at the police department, where it remained until it was brought to court for the appellant's trial.
The appellant argues that because Rhonda Hatcher did not testify to receiving the...
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