Luttrell v. State, 6 Div. 407

• Decision Date: 24 February 1989
• Docket Number: 6 Div. 407
• Citation: 551 So.2d 1126
• Parties: Billy Charles LUTTRELL, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1126

551 So.2d 1126

Billy Charles LUTTRELL, Jr. v. STATE.

6 Div. 407.

Court of Criminal Appeals of Alabama.

Feb. 24, 1989.

Rehearing Denied April 28, 1989.

Certiorari Quashed Nov. 9, 1989

Alabama Supreme Court 88-1006.

Richard S. Jaffee and Roger D. Burton of Jaffe, Burton & Digiorgio, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Kenneth S. Nunnelley, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of violating the Alabama Uniform Controlled Substances Act, specifically for possessing Dilaudid. He was sentenced to 15 years' imprisonment and was fined $100,000. Although the appellant has raised three issues on appeal, because one of them requires a reversal, the remaining two issues will not be discussed.

Investigator William F. Batson, of the Alabama Bureau of Investigation Narcotics Division, testified that he received information that the appellant had been involved in fraudulent prescriptions, in that he was either writing the prescriptions or having them written. Investigator Batson testified that he had information that the prescriptions were being given to older people, generally "winos" who were cleaned up and instructed to take the prescriptions into drug stores and have them filled. The prescriptions bore the name of Dr. Jacob Dagani. Investigator Batson testified that he approached the appellant by telephone and informed him of "what I [Batson] knew" and asked for his assistance. Investigator Batson stated that he told the appellant that "if Billy agreed to assist us in this investigation that the particular evidence that he turned over to me there at the apartment would not be used against him when we prosecuted him on the charges, and that this information, that he assisted us, would be brought to the D.A.'s attention, the fact that he did assist us." The record indicates that the appellant's attorney at that time was aware of these promises; however the record does not disclose whether the attorney advised the appellant or informed him of his knowledge of the promises.

After Investigator Batson telephoned the appellant, he consented to allow Investigator Batson to enter his apartment, wherein the appellant described, according to Investigator Batson, "the whole scheme or the whole way that they were doing it, the whole idea, the way they started from line one to the end of it." Investigator Batson testified that he could not recall whether he had informed the appellant of his Miranda rights. Investigator Batson testified that the appellant, a woman named Joyce Lynch, and he were the only individuals present. The appellant was using prescription blanks of Dr. Dagani, whose receptionist was verifying the fake prescriptions as they were called in. The appellant also gave Investigator Batson an entire package of prescriptions made out to various names. One of the names was "Elizabeth Peoples." He also showed Investigator Batson a list of names, including "Elizabeth Peoples," which he planned to use in the prescription blanks. Investigator Batson further testified that the appellant agreed to work for him to "set up the ring" that was forging prescriptions on Dr. Dagani, and further,

"[t]hat he would continue doing what he had been doing in the past as far as making up the prescriptions, going down to the Jimmy Hale Mission and picking up a wino, taking him and cleaning him up and buying him a new pair of pants, a shirt, getting him shaved and making him look presentable, giving him the forged prescription written on Dr. Dagani, taking it to a drug store at a time at which Dr. Dagani was not in his office.... The wino would bring the--the old man would bring the drugs out to Billy Luttrell, the defendant. Billy Luttrell would either pay the wino with money, wine, in some cases give him a pill from the prescription. After he took the wino back to Jimmy Hale Mission he would then return and meet Mike Lynch, Joyce Lynch's husband, and would dispense or distribute the drugs between the two of them."

Investigator Batson testified that this arrangement was made while he was at the appellant's apartment.

Several weeks later, Investigator Batson, while assisted by an employee of the district attorney's office, and William B. Carson, of the Jefferson County sheriff's office, "staked out" a drug store where, on the previous day, he had observed a prescription for Dilaudid made out to "Elizabeth Peoples" and signed by Dr. Dagani. The appellant arrived at the drug store, accompanied by Verley James Rogers. Rogers entered the drug store while the appellant parked at the end of the parking lot. A prearranged signal had been made which the pharmacist was to use in order to call Investigator Batson's beeper. Investigator Batson then entered the drug store. He observed Rogers walk back to the car, carrying a white paper bag. The officers began to follow the appellant's vehicle. Investigator Batson testified that he observed the appellant holding a white paper bag in his hand and apparently looking into the bag. The officers then pulled the appellant's vehicle over and Investigator Batson testified that he observed the appellant shove the white paper bag between the driver's seat and the transmission casing.

The trial court indicated during the voir dire examination of Investigator Batson, that the State would not be permitted to introduce any evidence of the statements made by the appellant to Investigator Batson while Batson was at the appellant's apartment. However, the State indicated that it only wished to introduce testimony that Investigator Batson had seen the forged prescription blanks and the list of names, including that of Elizabeth Peoples, when he was previously at the appellant's apartment.

The evidence that the forged prescription blanks had been previously seen at the appellant's apartment was essential to the State's proof of a prima facie case; i.e. that the appellant obtained, by the forgery or alteration of a prescription, controlled substances. The trial court thereafter allowed Investigator Batson to testify, over defense counsel's objections, that he had seen a prescription blank with Dr. Dagani's name on the printed form and made out to Elizabeth Peoples.

Although the appellant consented to tell Investigator Batson about the scheme and method of obtaining the Dilaudid by forged prescriptions and consented to show Investigator Batson the prescriptions and list of names for use in the prescriptions, the State did not meet its burden of proving that the consent was voluntary. Therefore, Investigator Batson should not have been allowed to testify that he had previously observed Dr. Dagani's prescription blanks with Elizabeth Peoples's name on them in the appellant's apartment.

"The State carries the burden of proving that consent was given and voluntarily. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). 'Consent must be proved by clear and positive testimony and must be unequivocal, specific, and intelligently given, uncontaminated by any duress and coercion.' United States v. Williams, 754 F.2d 672, 674-75 (6th Cir.1985). Whether consent is in fact voluntary is 'a question of fact to be determined from the totality of the circumstances.' Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973); United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir.1985). Within the totality of the circumstances, there are three specific factors to consider in determining whether the State has sustained its burden of proving that the consent was voluntary.

" 'In determining the specifics necessary to sustain the burden of showing that consent was voluntary, this court has established a three-tiered analysis. First, there must be clear and positive testimony that the consent was unequivocal and specific. Second, the Government must establish that the consent was given without duress or coercion. Finally, we...