Luker v. State

• Decision Date: 29 June 1976
• Docket Number: 1 Div. 668
• Citation: 344 So.2d 1219
• Parties: John David LUKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1219

344 So.2d 1219

John David LUKER v. STATE.

1 Div. 668.

Court of Criminal Appeals of Alabama.

June 29, 1976.

Rehearing Denied Aug. 24, 1976.

Crawford, Blacksher, Figures & Brown, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted for violating the Alabama Uniform Controlled Substances Act and, because he had been convicted for violating this same act on two previous occasions, the Court sentenced him to 30 years impriosnment in the penitentiary. Prior to arraignment he was found to be indigent and the Court appointed counsel to represent him. At arraignment he pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was furnished a free transcript and new counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

'The GRAND JURY of said County charge, that before the finding of this indictment JOHN DAVID LUKER whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully possess codeine phosphate, phenobarbital, butalbital, a derivative of barbituric acid, phentermine hydrochloride, secobarbital, a derivative of barbituric acid, mazindol, pentobarbital sodium, a derivative of barbituric acid, against the peace and dignity of the State of Alabama.'

The testimony adduced by the State established that George Sullivan, Jr., a member of the Mobile Police Department for 16 years, was assigned to the Narcotics Division prior to April 6, 1975. He testified that he received a telephone call on the night of April 6, 1975, from a confidential informer that appellant was selling drugs at his apartment which was the southeast apartment located at 160 North Lafayette Street in the city and county of Mobile, Alabama. He stated that this informer was reliable and had given him information in the past that led to the arrest and conviction of three persons who were dealing in drugs and that at no time had this informer given him information that proved to be untrue. Sullivan was at home on the night of April 6, 1975, when this informer called him. He further testified that he received a second call on the morning of April 7, 1975, from the same informer in which he told Sullivan that appellant had the drugs in the bottom dresser drawer in the bedroom of his apartment and said that appellant represented the drugs to be codeine.

Before getting a search warrant Sullivan contacted Patrolman John Saxon and asked him to determine whether or not appellant was at home. Saxon checked and found appellant was at the apartment and he went before a municipal court judge in Mobile and signed an affidavit based upon the informer's tip and procured a search warrant. Sullivan and several other officers went directly to this apartment. As the officers got within 50 feet of the apartment they observed a girl named Mary Prichard, whom Sullivan knew, running down an alley and as they approached the alley, the officers saw appellant coming out of the door of the apartment. Sullivan stated that he had been appellant before and informed him that he had a search warrant and presented the warrant to him upon his request. Appellant opened the door and went in the apartment followed by Officers Sullivan, Pickett and Saxon, and the girl also entered the apartment.

Before Sullivan asked appellant any questions, he made the statement, 'I have kidnapped this girl, Mary Prichard, here,' from Gateway Drug Rehabilitation Center. Sullivan then explained that Gateway was a rehabilitation center where 'known drug addicts go for treatment to try and kick the habit' and he verified that Mary Prichard was living there at that time.

The search continued and Officer pickett found a brown paper bag containing all kinds of narcotics in the bottom dresser drawer which was precisely the place the informer said the drugs were located. Sullivan looked in the bag and intended to arrest appellant but before he could say anything, appellant stated, 'All of these drugs belong to me. She has no knowledge of the drugs whatsoever. They are all mine.' These statements made by the appellant were not objected to by the defense.

At this point a hearing was hold outside the presence of the jury to determine the legality vel non of the search warrant. Appellant did not attack the sufficiency of the affidavit about the reliability of the informer but contended that the warrant was defective under the provisions of Title 15, Section 112, Code of Alabama 1940. Appellant contended that items 16 and 17 which were on the original return did not appear on the copy that was given to him, and therefore, the entire warrant must fail. This objection was overruled by the Court saying, 'that the defendant's constitutional rights were not violated in the execution of the search warrant and that the items recovered were recovered pursuant to lawful practices by the police department.' Items 16 and 17 were personal letters of appellant and Mary Prichard and there was no attempt to introduce these letters into evidence.

After the jury returned to the courtroom, Officer Sullivan identified a brown paper bag as being the one found in a bottom dresser drawer of the apartment searched. Sullivan then identified 18 exhibits as items which were in the brown paper bag.

Sullivan then testified that he started to advise the appellant of his Miranda rights but appellant 'interfered with a spontaneous statement' that the narcotics were his and not Mary Prichard's. At this time Sullivan advised appellant of his rights and he stated that he understood his rights, but that he had 'nothing to say.'

Sullivan then identified State's Exhibit 20 as a piece of aluminum foil containing small tablets given to him by Officer Saxon while executing the search warrant and this exhibit was received in evidence over appellant's objections. Sullivan said that appellant told him the tablets were saccharin that he used in his coffee. Sullivan said that men's clothes were found in two drawers in the apartment and that appellant's shoes were under the bed and he was barefooted when he was arrested.

On cross-examination Sullivan stated that at the time of the search he knew that Mary Prichard had been indicted by a federal grand jury for the sale of heroin and that she lived at Gateway, a drug rehabilitation center. Sullivan did not know who owned or leased the apartment at 160 Lafayette Street but he had information that appellant had been living there for two weeks prior to the search.

Sullivan further testified that on the day of the search and arrest Mary Prichard was wearing one of appellant's shirts and a pair of blue jeans, in fact the shirt was the same one that appellant had worn to court on the previous day. Sullivan qualified his previous statement that no women's clothes were found by stating that he meant 'no dresses, no bras, or undergarments that a woman would wear. Just pants and shirts.'

On redirect examination Sullivan stated that Mary Prichard had on a pair of men's pants on the day of the search and that the items of clothes found in the apartment consisted of two pairs of blue jeans, one pair of brown corduroy pants, a green and white long-sleeved shirt, a brown suede buckskin jacket and one pair of boots which appellant put on before being carried to jail. No underwear was found in the apartment.

Officer Walter Pickett accompanied Officer Sullivan to the apartment to execute the search warrant. He saw appellant coming out the door and heard him say that he had kidnapped Mary Prichard and at the time he made that statement no officer present had asked him any questions. Pickett went to the bedroom where he found a brown paper bag in the bottom drawer of a dresser and the appellant made the statement 'that the stuff belongs to him and that he lived there and that everything was his and not the girl's.' Pickett further testified that appellant repeated this statement after being advised of his rights.

Patrolman John Saxon testified that as a result of telephone call from Officer Sullivan on the morning of April 7, 1975, he stationed himself in a position where he could observe the apartment at 160 North Lafayette Street through a pair of binoculars. From this position Saxon observed appellant and a white female leave the apartment and reenter on two occasions from approximately 11:30 to 11:35 a.m. According to Saxon he had seen appellant at the apartment about two weeks earlier.

Saxon participated in the search of the apartment and found 30 small white tablets wrapped in aluminum foil in the kitchen. He found no dishes, glasses, eating utensils or food in the apartment. Appellant stated the tablets were saccharin.

On cross-examination Saxon testified that appellant and Mary Prichard appeared to be having an argument while he observed them outside the apartment. Saxon stated that he recognized appellant because he had been pointed out to him as a 'known narcotic dealer,' and that he had observed him during the daytime at the apartment several times during the two-week period preceding the search and arrest.

Alilee Pillman had been employed by the State Department of Toxicology since 1951. She testified that she had a degree in general chemistry, analytical chemistry and instrumental analysis and had performed thousands of analyses on controlled substances and had testified in court a hundred or more times. She conducted a laboratory analysis on all the drugs that were delivered to her as having been found in the search of appellant's apartment and they were all controlled substances. There were approximately 800 pills, tablets and capsules on which she conducted a laboratory analysis. She stated the 30 small white tablets in the aluminum foil were not saccharin tablets but were codeine tablets. She testified that she ran tests on State's Exhibits 17, 18, and 19, which were two syringes, a needle and a...