Marks v. State

• Decision Date: 21 September 1990
• Docket Number: 8 Div. 414
• Citation: 575 So.2d 611
• Parties: Jerome Terrence MARKS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 611

575 So.2d 611

Jerome Terrence MARKS v. STATE.

8 Div. 414.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

On Return to Remand Jan. 18, 1991.

Rehearing Denied Jan. 18, 1991.

Don Temple Terrell, Huntsville, for appellant.

Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Jerome Terrence Marks, was indicted by a Morgan County Circuit Court for the offense of trafficking cocaine, a violation of § 20-2-80, Code of Alabama 1975. A jury found appellant guilty as charged in the indictment, and appellant received a sentence of eight years in the State penitentiary.

Appellant now appeals his conviction, raising three issues.

Appellant's first issue is that the trial court failed to swear in the members of the petit jury. Our examination of the record on appeal reveals that the court's administration of the oath of the jurors was not included in the record. However, we do find an indication from the transcript that the jury was "selected," but no evidence of that selected jury being sworn. In addition, the court's minute entry and case action summary sheet fail to indicate that the jury was duly sworn.

The administration of the oath to a petit jury is a statutory requirement under § 12-16-170, Code of Alabama 1975. Numerous Alabama cases indicate that a presumption that the jury was sworn cannot be made from a silent record. See e.g., Porter v. State, 520 So.2d 235, 237 (Ala.Cr.App.1987); Wilson v. State, 57 Ala.App. 591, 329 So.2d 649, 649 (1976); Whitehurst v. State, 51 Ala.App. 613, 288 So.2d 152, cert. denied, 292 Ala. 758, 288 So.2d 160 (1973). "There must be some affirmative showing in the record that the oath to the jury was administered." Porter v. State, 520 So.2d at 237 (citing Gardner v. State, 48 Ala. 263 (1872)). An unsworn jury is a non-jury. Wilson v. State, 329 So.2d at 649.

For the above-stated reasons, this cause is returned to the trial court for a determination as to whether the petit jury was properly administered the oath pursuant to § 12-16-170.

We, therefore, refrain from addressing appellant's other issues on appeal until due return of the trial court's findings to this court.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

PATTERSON, Judge.

We remanded this case to the trial court for a determination as to whether the petit jury which heard the case was properly administered the oath required by § 12-16-170, Code of Alabama 1975. A return to our remand has been filed showing that the oath was properly administered. Thus, there is no merit in the first issue raised by appellant on appeal. We will now address the remaining issues.

I.

Appellant contends that the trial court committed reversible error in denying his motion to suppress evidence seized as a result of a search conducted pursuant to a warrant. He argues that the warrant was invalid because, he says, it was based upon an affidavit containing "double hearsay." The relevant part of the affidavit states:

"Within the past two hours prior to the signing of this affidavit, your affiant was contacted by James E. Hunter an officer with the Huntsville Police Department. Inv. Hunter advised your affiant that he had been contacted by a confidential and reliable informant concerning the possession of Cocaine Hydrochloride in Decatur, Alabama. Inv. Hunter added that this informant has given information in the past that has led to the arrest and conviction of numerous violators of the Alabama Uniform Controlled Substance Act. Inv. Hunter stated that this informant stated to him that he had been inside the above described residence within twenty-four hours prior to his conversation with Inv. Hunter and observed a quantity of Cocaine Hydrochloride being offered for sale by Jimmy Ranceful while inside the residence. Inv. Hunter also stated that the informant told him that he observed an additional quantity of Cocaine Hydrochloride inside the residence other than that which he observed being offered for sale. Your affiant was also contacted by a confidential informant within the past two weeks concerning the same residence. This informant has provided information in the past which has led to the arrest and conviction of violators of the Alabama drug law. This informant described the residence within the month prior to our conversation and observed Cocaine Hydrochloride being offered for sale from within the residence."

The record shows that Sergeant Frank DeButy (a narcotics investigator in the Decatur police department), Dick Marx (an agent of the Federal Bureau of Investigation), and Officers Mark Roberts and James Hunter of the Decatur police department went to a residence in Morgan County belonging to Emma Byrd. They had received reports that drug transactions were taking place in the residence. Appellant, Susan Tovar, Susan Tovar's brother, and a child were at the residence when the officers arrived. The officers requested permission to search the residence, and were told by the persons present, including appellant, that they did not have authority to consent to a search. Agent Marks and Officer Roberts remained at the residence while Sergeant DeButy and Officer Hunter went to the magistrate to obtain a search warrant. DeButy prepared and executed the affidavit and he and Hunter appeared before the magistrate. The magistrate issued the warrant based upon DeButy's affidavit, a portion of which is quoted above. The officers returned to the residence and executed the warrant, finding and seizing the cocaine and drug paraphernalia in the residence.

Appellant contends that Sergeant DeButy had no personal knowledge for swearing that an informant known to Officer Hunt was reliable. He characterizes the information in the affidavit as "double hearsay." While Officer Hunter was present when the magistrate issued the warrant, the magistrate apparently did not question him.

Section 15-5-3, Code of Alabama 1975, provides: "A search warrant can only be issued on probable cause, supported by an affidavit naming or describing the person and particularly describing the property and the place to be searched."

Probable cause must be determined by an analysis of "the totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). In determining whether to issue a search warrant, the issuing magistrate is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the person supplying the information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v Gates; Hyde v. State, 534 So.2d 1132 (Ala.Cr.App.1988). Our duty as a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates; McCray v. State, 501 So.2d 532 (Ala.Cr.App.1986); Hyde v. State. Probable cause may be based on hearsay from a reliable source if there is a disclosed, reliable basis for the information. Illinois v. Gates, 462 U.S. at 245, 103 S.Ct. at 2335; United States v. Hernandez, 825 F.2d 846, 849-50 (5th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988); United States v. Asselin, 775 F.2d 445 (1st Cir.1985); Waldrop v. State, 462 So.2d 1021 (Ala.Cr.App.1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985). Information from fellow officers may be relied on. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). However, "To comply with the requirements of particularity and to make an independent probable cause evaluation, ... the agent must state in the affidavit that he is relying upon other officers." United States v. Kirk, 781 F.2d 1498 (11th Cir.1986). Courts have constantly held that another law enforcement officer is a reliable source and that consequently no special showing of reliability need be made as a part of the probable cause determination. W. LaFave, Search and Seizure § 3.5(a) (2d ed. 1987). This is important when the law enforcement officer is a link in the chain of communication, as he is in the instant case. See State v. Alderete, 88 N.M. 14, 536 P.2d 278 (1975) (arrest warrant issued upon affidavit of detective based upon his examination of police reports, and holding that the fact that the affiant detective's information was double hearsay did not keep that information from providing probable cause); United States v. Asselin (rejecting hearsay objection where affiant set out what a police officer was told by his informant); State v. Pontier, 103 Idaho 91, 645 P.2d 325 (1982) (information passed from California narcotics agent to Idaho agent and then to affiant held sufficient to establish probable cause); Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979) (rejecting hearsay objection where eyewitness gave his information to one police officer and that officer then telephoned the information to another officer who acted as affiant to obtain the search warrant).

In the instant case, the information came from a reliable informant who had given information in the past which had led to numerous arrests and convictions for violations of the controlled substances act. He reported to Officer Hunter that within the last 24 hours he had observed cocaine being offered for sale in the residence by Jimmy Ranceful and had also observed an additional quantity of cocaine in the residence other than that being offered for sale. Officer Hunter communicated this information to the affiant, Sergeant DeButy, within two hours. DeButy executed the affidavit based on the information furnished by Hunter, and he obtained the search warrant. The affidavit recites that the information was obtained from Officer Hunter. Officer Hunter, who supplied the information for the affidavit, possessed the requisite information to...