McKessick v. State

• Decision Date: 13 September 1973
• Citation: 291 Ala. 564,284 So.2d 516
• Parties: Bobby Gene McKESSICK v. STATE of Alabama. SC 349.
• Court: Alabama Supreme Court

Page 516

284 So.2d 516

291 Ala. 564

Bobby Gene McKESSICK v. STATE of Alabama.

SC 349.

Supreme Court of Alabama.

Sept. 13, 1973.

Rehearing Denied Nov. 8, 1973.

Kenneth R. Cain, Ozark, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, appellee.

MADDOX, Justice.

Appellant, Bobby Gene McKessick, was indicted, tried and convicted for the unlawful possession of drugs.

Lt. Kater Williams of the Mobile City Police Department was a shift lieutenant and on the morning of January 11, 1971, between 1 and 2 o'clock, he received a radio dispatch to call a telephone number. Lt. Williams called the number and talked to an informer. He knew the informer. He testified the informer was reliable in that the information supplied by him on previous occasions had led to 'more than ten' convictions in Mobile County. Lt. Williams was informed that there was a white male in the vicinity of the Loop on Highway 90, driving a tan, 1967 Plymouth automobile, with an Alabama license. The informer gave the full license number, but the officer could only recall at trial that the first two numerals were '27--.' The informer described the occupant of the car as being approximately five feet, ten inches tall, with black hair and weighing 175 to 180 pounds. He said he would be wearing a blue suit. The informer said he thought the individual described was about 38 years of age. The informer stated that the subject was 'dealing in narcotics.'

Lt. Williams went to the Loop area, and saw a vehicle with the tag number which had been given to him by the informer. The driver of the automobile fit the description given by the informer. Lt. Williams followed the car on Highway 90 west and called for another unmarked car to assist in following the vehicle. He continued to keep the car in sight. The car pulled into a Trackside service station and the subject got out and went into the station. The officer, using binoculars, observed the subject make three telephone calls and talk to the attendant. He was there approximately 45 minutes.

While the subject was at the service station, there were three or four cars which came in for service. When the subject left and headed back toward Mobile, Lt. Williams noticed there were two people in the car. Lt. Williams called a marked patrol car to pull the subject's car over. When the car was stopped, Lt. Williams and two other officers were present. The woman passenger was known by the police as a user of narcotics. While the officers were questioning both McKessick and the female passenger, one of the officers said, 'She just threw something.' Lt. Williams and another officer found numerous pills, capsules and tablets on the ground near the door from which the female passenger had alighted. While the officers were gathering the pills off the ground, they noticed some more on the floorboard of the passenger side in the car. The officers then asked to see the female passenger's purse. It contained more pills and a .38 caliber revolver. She was arrested. At about that time, the officers found a crumpled brown paper bag containing more pills and a small bottle of clear liquid. McKessick was then placed under arrest for possession of prohibited drugs.

The facts of this case are very similar to those in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We affirm on authority of that case.

McKessick argues that the district attorney made improper and prejudicial remarks during closing argument. We have examined carefully the portions of the closing argument McKessick's counsel objected to and find that his objections were sustained or the argument made was not error to reverse.

McKessick contends that the State failed to prove all the averments in the indictment. The indictment stated that the defendant unlawfully possessed bihphetamine '20' d-amphetamine and dl-amphetamine and methamphetamine hydrochloride, stimulating drugs. The State concedes that there was a misspelling of bi-phetamine 20 in the indictment. The indictment spelling--' bihphetamine' contained an extra 'h.' Biphetamine 20 is the trade name. Biphetamine 20 contains d-amphetamine and dl-amphetamine. These two chemicals followed the trade name of the drug in the indictment as descriptive terms. Before an objection because of false grammar, incorrect spelling, or mere clerical error is entertained, the court should be satisfied of the tendency of the error to mislead. Sanders v. State, 278 Ala. 453, 179 So.2d 35 (1965); Title 15, Section 231, Code of Alabama, 1940.

Having examined the record in this cause, and having considered the argument of counsel concerning alleged prejudicial error, we are of the opinion that no error to reverse is shown and that the judgment of conviction is due to be affirmed.

Affirmed.

MERRILL, COLEMAN, HARWOOD, and McCALL, JJ., concur.

BLOODWORTH, J., concurs specially, with which HEFLIN, C.J., concurs.

FAULKNER and JONES, JJ., dissent.

BLOODWORTH, Justice (concurring specially):

I concur in the opinion of Mr. Justice Maddox which affirms the conviction of the defendant because, in my judgment, the testimony set out in his opinion clearly shows that there was 'probable cause' to stop and arrest defendant. Thus, the search and seizure was reasonable since it was incident to a lawful arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Ker .v California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1961); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

HEFLIN, C.J., concurs.

FAULKNER, Justice (dissenting).

I dissent from the majority opinion on the question of unlawful search and seizure. The majority base their holding on this point of law on Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. I fail to see any remote resemblance to Adams in this case as authority for upholding the search of McKessick's automobile.

In Adams a police officer, acting on information given him in person by an informer who was alleged to be credible, requested the defendant, who was sitting in a parked car, to open the door. The defendant lowered the window and the officer reached into the car and found a loaded handgun (which was not visible from the outside) in the defendant's waistband, In the exact place the informer said it would be. Thereupon, the defendant was arrested for unlawful possession of a handgun. A search incident to the arrest was made and substantial quantities of heroin were found on the defendant's person and in the car.

The majority in Adams recognized on authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, that an officer making a reasonable investigatory stop may conduct a limited protective search for concealed weapons when he has reason to believe that the suspect is armed and dangerous. This is the 'stop and frisk' doctrine and its purpose is not to discover evidence of crime, but to allow the police officer to pursue his investigation without fear of violence.

The majority in McKessick states that 'the facts of this case are very similar to those in Adams v. Williams' (citation omitted). The facts are very dissimilar to Adams.

In Adams the informer gave information to the police officer in person that the defendant had a gun. In McKessick...