Lewis v. State
| Decision Date | 01 October 1975 |
| Docket Number | 1 Div. 553 |
| Citation | 57 Ala.App. 545,329 So.2d 596 |
| Parties | Winston LEWIS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John F. Butler, Mobile, for appellant.
William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
A jury convicted appellant-defendant, pursuant to an incident, of possessing heroin contrary to law. Act No. 1407, Vol. 3, Acts 1971, p. 2378, § 204 (Schedule 1) (c)(10), p. 2384.
The trial court fixed punishment at three years imprisonment in the penitentiary. Defendant, an indigent here, appealed from the judgment.
The police officers in Mobile procured a valid search warrant for an apartment at a designated address in Mobile, and on Monday, March 18, 1974, proceeded to the address, in the daytime, to search the premises for narcotics.
Officer Seals knocked on the front door of the (two-story) apartment in response to which occupant, Raphael Morse, came to the door, and asked who it was. Officer Seals gave his name and official title. Morse, according to Officer Seals, pulled back the curtain over the glass window in the door and then proceeded to leave without making any effort to open the door.
Within five to ten seconds after the hurried departure, Officer Seals kicked the door open and entered just in time to see defendant make a hurried exit through a rear window to the ground. Officer Seals restrained Morse pending the chase of defendant.
The officer gave chase of defendant for a short distance, when the latter stumbled and fell. About this time the officer fired his pistol one time into the air to try to stop the fleeing Lewis.
This officer observed when he got to Morse that he had in his hand some paraphernalia (we omit identification of items) for injection of heroin. Possession of such paraphernalia is a misdemeanor, § 507, p. 2401, Act No. 1407, supra. The officer arrested defendant thereupon for such unlawful possession and took him back into the apartment.
After this episode, the officers, Seal, Calhoun and Orso made a careful search of the premises and found five capsules of white powder (identified in the trial as heroin) under a rug in the bathroom. The officers seized the powder.
At the voir dire hearing in camera it appears that while in the apartment one of the officers read defendant his Miranda rights. Soon thereafter defendant and Morse were taken to the police station where defendant was detained in the interrogation room and again reminded of his rights previously read to him. The defendant admitted that he possessed the heroin which he bought from a 'dude' in Prichard.
After an extended examination, direct and cross, relative to the confession which the officers said was freely given without force, threats or inducement, etc., the trial court overruled defendant's motion to suppress evidence of the confession and on trial admitted the capsules in evidence. A qualified State toxicologist testified that the powder in the capsules was heroin.
The State did not press the charge for possession of the paraphernalia which it appears defendant possessed when he was fleeing and was overtaken.
As we noted above, evidence was taken in camera in support of the State's contention that the confession of defendant that the heroin found in the bathroom was his. The record implies that the trial court ruled that the alleged confession was voluntarily given. The court exercised its prerogative in determining that issue. Duncan v. State, 278 Ala. 145, 176 So.2d 840(22).
The jury considers the weight and credibility of the confession. Stone v. State, 208 Ala. 50, 93 So. 706.
It is observed in 23 C.J.S. Criminal Law § 843, at p. 297, as follows:
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