McCurley v. State

• Decision Date: 22 January 1980
• Docket Number: 1 Div. 87
• Citation: 390 So.2d 15
• Parties: Lula Mae McCURLEY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 15

390 So.2d 15

Lula Mae McCURLEY, alias v. STATE.

1 Div. 87.

Court of Criminal Appeals of Alabama.

Jan. 22, 1980.

Rehearing Denied Feb. 26, 1980.

Richard D. Horne and Barry Hess, of Hess, Atchison & Stout, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Lula Mae McCurley was indicted by the September, 1977, session of the Mobile County grand jury for violation of the Alabama Uniform Controlled Substances Act, Title 22, § 258(25) through 258(60), Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp. (now §§ 20-2-1 through 93, Code of Alabama 1975). The indictment charged five counts of possessing illegal drugs: (1) codeine, (2) pentazocine, (3) chlorazepate, (4) diazepam, and (5) d-amphetamine sulfate. This case was tried by the court without the intervention of a jury. After hearing the evidence the trial court returned a judgment of guilty on counts 1, 2, 3, and 5; and granted the appellant's motion to exclude as to count 4. The trial court sentenced the appellant to four years imprisonment in the penitentiary, ordered that twelve months of the sentence be served in the Mobile County Jail and suspended the remainder of the sentence pending good behavior. In addition he ordered that she be placed on probation at completion of the sentence. The appellant's retained trial counsel represents her on this appeal.

Bobby W. Brown, an investigator for the Alabama Department of Public Safety's narcotics unit, testified that during October, 1976, he worked in the Mobile area as a backup to contract agent (informant) Juanita Sorrells. On October 25, 1976, Brown and Sorrells went before Judge Thomas Sweeney to secure a search warrant for the Terrace Motel. Sorrells signed the search affidavit in support of the search warrant as the affiant.

According to Brown, Sorrells testified under oath before Judge Sweeney that 1) she had stayed at the Terrace Motel on different occasions, 2) she had been given and had purchased drugs from the appellant and Jimmy Eugene McCurley, 3) the appellant had stated that a shipment of morphine was expected at the motel on a certain date, and 4) she and the appellant talked about the appellant's involvement in transporting drugs to prisons-how they were carried in, etc.

A search warrant was issued to Brown on October 25, 1976, but was never executed. No explanation was given. The next day, October 26, Brown went back to Judge Sweeney alone and obtained another search warrant for the Terrace Motel. This one was executed in this case. In support of the second search warrant Brown testified under oath before Judge Sweeney as to the facts related earlier by Sorrells. In addition Brown testified that he had the Terrace Motel under surveillance for the past sixty days. Brown signed the affidavit in support of the second search warrant.

At trial Brown testified that during the period of his surveillance of the Terrace Motel he saw different agents in his employ go in and meet with the appellant on different occasions. Brown saw what he assumed were drug transactions taking place in the driveway of the motel but could not see actual drugs being passed. He took photographs of the alleged drug transactions on different occasions.

Brown testified that Juanita Sorrells was in the Mobile area approximately three months. The last contact he had with her was latter 1977 or early 1978. He did not know her present whereabouts.

Marion Pugh, an investigator for the District Attorney's Office, testified that on October 26, 1976, he executed a search warrant at the Terrace Motel, 4153 Government Boulevard, Mobile County, Alabama. Pugh served the warrant on the appellant and her husband, Edward McCurley, and made the return on the warrant to Judge Sweeney the next day.

Participating in the search were approximately six officers, including Pugh, Investigator Brown, and Dr. Small. The Terrace Motel consists of three groups of buildings-a residence, an office, and 15-20 rental rooms. It is all one area off Highway 90. Entry was made without force to the residence portion of the motel. Present in the residence portion at the time of the search were the appellant, Edward and Jimmy McCurley.

James L. Small, Toxicologist for the Department of Forensic Sciences, testified that he was custodian of the evidence during the search of the Terrace Motel. As officers located items of evidence, Dr. Small would take custody of each item and record where and who found it.

The defense counsel stipulated as to Dr. Small's qualifications and waived the laying of predicate of chemical tests for identification. The following items were identified by Dr. Small and admitted into evidence.

1.) State's Exhibit # 5: a clear vial with no prescription label containing white tablets identified as Acetaminophen and Codeine. This was found in a purse containing the appellant's drivers license.

2.) State's Exhibit # 6: a sealed container of 100 pink tablets identified as Pentazocine (Talwin). This was recovered from the same purse as Exhibit # 5.

3.) State's Exhibit # 7: a vial containing two small pink tablets identified as Pentazocine (Talwin). This was recovered from the same purse as Exhibit # 5. This vial contained a prescription label for a Mrs. Davenport, later identified as the appellant's sister.

4.) State's Exhibit # 8: five white tablets identified as Codeine (Tylenol # 4). These were found in plain view on top of a dresser in one of the residence bedrooms.

5.) State's Exhibit # 9: a vial containing seven maroon and gray capsules identified as Chlorazepate (Tranzene). The vial contained a partially torn prescription label in the appellant's name indicating that the prescription was for Valium (Diazepam). This evidence was found behind the registration counter in the motel office.

6.) State's Exhibit # 10: a vial containing one small pink tablet identified as Pentazocine (Talwin). The prescription label on the bottle was to James McCurley and indicated that the contents should have been Empirim # 3 (Codeine). This evidence was found beneath the mattress of one of the day beds in the motel office.

7.) State's Exhibit # 12: a vial containing 24 brown and clear capsules identified as D-Amphetamine Sulfate. This was found in the hall closet of the residence. This bottle contained a prescription label in the appellant's name.

8.) State's Exhibit # 13: a brown vial containing 139 maroon and gray capsules identified as Chlorazepate (Tranzene). Dr. Small first testified that this evidence was found on a nightstand next to a bed in one of the residence bedrooms, but he later testified it was recovered from beneath the mattress of one of the day beds in the motel office.

9.) State's Exhibit # 14: a bottle containing nine pink tablets identified as D-Amphetamine Sulfate and Butabarbital. The evidence was found beneath the mattress of one of the day beds in the motel office.

Dr. Small testified that the motel office has two entrances, one on each end. Inside the office is a lobby area and a counter for registering. Two day beds are located behind the counter area. The appellant was not present in the office when the evidence was recovered there. He did not know who worked in the office. He also did not know who occupied which bedroom in the residence.

Investigator Brown was recalled as a witness for the state. He testified that he recovered the purse containing State's Exhibits # 5, 6, and 7 on the dining room table of the residence and that the appellant admitted it was her purse. He also stated that the hall closet in which State's Exhibit # 12 (D-Amphetamine Sulfate) was found was opened with a key produced by the appellant.

Brown further testified that the motel office, the residence, and the rental rooms were separate buildings but it was all located on one piece of property. During his investigation of the appellant he ascertained that she lived in the residence portion and that she was the operator of the motel. She gave her occupation as motel operator of the Terrace Motel on some forms she filled out during the search.

Brown also testified that the residence contained three bedrooms. He did not know who occupied which room.

At this point the state rested its case. The defense counsel made a motion to exclude the evidence on several grounds. The trial court granted his motion as to count 4 only.

The first witness for the appellant was Bessie Davenport, sister of the appellant. Mrs. Davenport owned the Terrace Motel in 1976 and was there everyday in 1976. She never saw any drugs sold there. Mrs. Davenport named several people who had access and had keys to the motel office: the appellant, Jimmy McCurley, Betty Cornelison, Bobby Cornelison, a white maid named Jeanette Walker, a black maid, Ed McCurley, and herself.

Mrs. Davenport testified that State's Exhibit # 7 (Pentazocine (Talwin)) was hers and that the appellant had been in possession of it with her permission. Mrs. Davenport was taking Talwin under prescription from a doctor. She left the drug at the appellant's residence by mistake while visiting. Mrs. Davenport telephoned the appellant and asked her to put the Talwin in her purse and keep it until she could return to pick it up. She also testified that State's Exhibit # 6 (Pentazocine (Talwin)) looked like her bottle of Talwin.

Betty Cornelison testified that the appellant is her mother. Mrs. Cornelison testified that the appellant, her father, brother Jimmy, son Bobby, and two maids live at the motel. The hall closet in the residence contains articles belonging to the appellant, her brother, and herself. Mrs. Cornelison possesses a key to the closet.

Mrs. Cornelison testified that she works at the motel. She stated that four or five people are behind the office counter on any given date. She testified that State's Exhibit # 6 is a container of Talwin that she found in rental room # 8 a day or two before the search. Mrs....