McCray v. State, 4 Div. 823

• Decision Date: 23 August 1988
• Docket Number: 4 Div. 823
• Citation: 548 So.2d 573
• Parties: Fred McCRAY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 573

548 So.2d 573

Fred McCRAY v. STATE.

4 Div. 823.

Court of Criminal Appeals of Alabama.

Aug. 23, 1988.

Rehearing Denied April 28, 1989.

Certiorari Denied June 23, 1989

Alabama Supreme Court 88-1008.

James G. Martin, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was found guilty of three counts of selling cocaine and one count of selling marijuana, in violation of § 20-2-70, Code of Alabama (1975). He was sentenced to 10 years and one day for each offense, the sentences to run concurrently.

I

The appellant argues that, because exhibits, including video tapes, cocaine, and marijuana, were never formally ruled as admitted into evidence, they were not before the jury and, in their absence, the State failed to sufficiently prove a prima facie case. However, while the video tapes were recording the drug buys, the buys were also being witnessed by the Chief of Police of Troy, Alabama, and an investigator with the Alabama Bureau of Investigation Narcotics Division, who both testified to the drug buys as they had observed them. Moreover, a criminalist from the State Forensic Laboratory testified that some of the exhibits were analyzed and found to be marijuana and cocaine. Therefore, the State proved a prima facie case, as the exhibits were merely cumulative of witnesses' testimony.

Furthermore, where real or demonstrative evidence has not been formally introduced into evidence, but has been used in connection with the giving of testimony, it is evidence in the case and may properly be considered by the jury. Miller v. State, 518 So.2d 801 (Ala.Cr.App.1987), and cases cited therein. See also C. Gamble, McElroy's Alabama Evidence, § 123.01(6) (3d ed. 1977).

II

The appellant argues that the bags of cocaine and the bag of marijuana should not have been admitted into evidence because a proper chain of custody was not established by the State. The record indicates that the Troy police chief testified that he took possession of the bag of marijuana and two of the cocaine bags immediately after the appellant sold them and that he placed them in sealed envelopes. On June 5, 1985, he gave them to Captain Grady Wiggins, of the Troy Police Department. He testified that Captain Wiggins carried the envelopes to the State Crime Lab in Enterprise, Alabama, so that the contents could be analyzed. He testified that the exhibits were in substantially the same condition as when he observed them in the drug deal and when he took possession of them immediately following the sale. Captain Wiggins testified that he transported the envelopes to the State Forensic Laboratory. Joseph Saloom, of the State Forensic Lab, testified that these exhibits were received at the lab from Officer Wiggins. He testified that he first came in contact with them on June 10, 1985, when he opened them and began his analysis.

The other bag of cocaine was collected by an investigator with the Alabama Bureau of Investigation Narcotics Division, who testified that he picked up the cocaine immediately following the sale. He stated that he sealed it and kept it in his custody until he delivered it to the State Forensic Lab in Enterprise. Joseph Saloom testified that that exhibit was received by the lab from the investigator and that he received the exhibit on June 10, 1985, and on that date opened the envelope and began his analysis.

The appellant argues that because there is no evidence as to who received the exhibits at the State Forensic Lab, and who kept possession of them until Joe Saloom began his analysis, the State did not prove a sufficient chain of custody. However, a weak link in the chain of custody presents a question of credibility and weight to be afforded the evidence by the jury, rather than its admissibility. Grice v. State, 481 So.2d 449, 451 (Ala.Cr.App.1985). The State need only prove to a reasonable probability that the object is in the same condition as, and not substantially different from, its condition at the commencement of the chain. Sommer v. State, 489 So.2d 643, 645 (Ala.Cr.App.1986). The State proved a sufficient chain of custody for these exhibits' admission into evidence.

III

The appellant argues that the trial court erred in admitting testimony by the Troy Chief of Police that was allegedly hearsay. The testimony concerned information relayed to the witness by an informant. The witness was allowed to testify that the informant had told him that he had had a conversation with the appellant and that the appellant was to come to his house on that night. The witness had previously testified to the same fact without objection. See Jelks v. State, 411 So.2d 844 (Ala.Cr.App.1981). Moreover, such testimony was not error, as it was not hearsay, because it did not go to prove the matter asserted. The testimony was introduced to show the reasons for Chief Reeves's actions. Specifically, the testimony was introduced not to prove that the appellant was to go to Griffin's house, but to show the motivation behind Chief Reeves's going to the house and setting up the video equipment. See Tillis v. State, 469 So.2d 1367, 1369-70 (Ala.Cr.App.1985). See also Tucker v. State, 474 So.2d 131, 132 (Ala.Cr.App.1984), reversed on other grounds, 474 So.2d 134 (Ala.1985); Adams v. State, 459 So.2d 999, 1002 (Ala.Cr.App.1984).

V

The appellant argues that the trial court erred by refusing to allow defense counsel to rehabilitate a witness who had been impeached by the prosecutor's eliciting her admission that she had been convicted of selling marijuana. The appellant contends that he should have been permitted to ask the witness questions which would have allegedly attacked the credibility of the undercover informant. The informant did not testify at trial. Such questions would clearly not have rehabilitated the witness.

Sale of marijuana is a crime involving moral turpitude, Gholston v. State, 338 So.2d 454 (Ala.Cr.App.1976), and therefore evidence of the conviction was properly used to impeach the witness.

"Impeachment of a witness by proof of his conviction of a crime involving moral turpitude authorizes proof of his good general reputation as a whole or with respect to truth and veracity, either or both. This is true whether the fact of such conviction is elicited on cross-examination of the witness or is otherwise proven."

C. Gamble, McElroy's Alabama Evidence, § 176.01(4) (3d ed. 1977).

Defense counsel's questions of the witness on redirect examination were not an attempt to prove her good general reputation, but rather an attempt to impeach the informant, who was not a witness at trial. Therefore, the trial court properly sustained the prosecutor's objection to the questions.

VI

The appellant contends that the trial court committed reversible error by making remarks to the jury concerning the possible length of the trial. The remarks made prior to and at the beginning of the trial were as follows:

"Now if this case goes to trial it will go then and you will be through here late tomorrow afternoon at the latest unless something unforeseen happens and we don't foresee that now. At the very latest it would finish up some time Wednesday morning.

"Once we get this done though, we can move on rapidly with the trial.

"By the way, if you ladies and gentlemen are wondering, you will be through here today."

The record reveals that the appellant failed to object to these remarks; therefore, they are not subject to review unless they are "grossly improper." Miles v. State, 476 So.2d 1228, 1235 (Ala.Cr.App.1985). "For a particular remark to amount to grossly improper error requiring reversal, it must have influenced the result of the case. Lokos v. State, 434 So.2d 818 (Ala.Cr.App.1982)." Id. There is nothing in the record to indicate that these introductory remarks to the jury had any influence on the result of the case.

VII

The appellant argues that he was entrapped into committing the charged offenses; specifically he says that he was induced by undercover informant Griffin to pay for drugs and then bring them to his trailer where he could collect Griffin's share of the money upon delivery of the drugs. He further submits that he had just returned from a drug rehabilitation center and that Griffin took advantage of his vulnerability. Although the appellant cites Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), to support his argument, the facts of Sherman are clearly distinguishable from those of the present case. In Sherman, the government informer met the appellant at a doctor's office, where both were being treated for narcotics addiction. The informer asked the appellant to help him obtain narcotics for his own use, but the appellant seemed reluctant to do so. The informer persisted until the appellant made several small purchases of the narcotics, selling half to the informer. In the present case, the State provided evidence, through video tapes and eyewitnesses, that the appellant brought the narcotics to Griffin's trailer and was handed money in return. Reeves testified that Griffin told him that the appellant offered to sell him the narcotics. The appellant contended that the video tape which was shown in court did not accurately portray the events of the evening in that, although it appeared to be a sale, the people involved had actually pooled their money to buy the narcotics. Thus, he argued it was not a sale.

The appellant did not establish a defense of entrapment. There is no indication that the agents of the State created a substantial risk that the appellant would commit an offense which he was not otherwise ready to commit. United States v. Dickens, 524 F.2d 441, 444 (5th Cir.1976), cert. denied, 425 U.S. 994, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976).

"The defense of entrapment is not available where a law enforcement officer does not induce the commission of the offense but merely affords an...