Meade v. State, 8 Div. 299

• Decision Date: 29 July 1980
• Docket Number: 8 Div. 299
• Citation: 390 So.2d 685
• Parties: Reginald MEADE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 685

390 So.2d 685

Reginald MEADE v.STATE.

8 Div. 299.

Court of Criminal Appeals of Alabama.

July 29, 1980.

As Corrected on Denial of Rehearing Aug. 19, 1980.

William J. Underwood, Tuscumbia, for appellant.

Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

"The Grand Jury of said county charge that before the finding of this indictment Reginald Meade, whose name is otherwise unknown to the Grand Jury than as stated, did on, to-wit: February 2, 1979, illegally possess cocaine contrary to and in violation of the Alabama Controlled Substance Act and that said Reginald Meade has heretofore been convicted of an offense under the Alabama Controlled Substance Act on, to-wit: December 6, 1976, against the peace and dignity of the State of Alabama."

Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him.At arraignment, in the presence of counsel, he waived the reading of the indictment, and pleaded not guilty.

The jury found him guilty and assessed a fifty thousand ($50,000.00) dollar fine against him and the trial judge sentenced him to twenty-two years in the penitentiary.He gave notice of appeal and was furnished a free transcript.Trial counsel was appointed to represent him on this appeal.

There was no motion to exclude the State's evidence; there was no request for the affirmative charge; no exceptions were reserved to the oral charge of the court; but appellant filed a motion for a new trial in which he raised the sufficiency of the evidence.No evidence was presented at the hearing on the motion for a new trial and after argument of counsel the motion was overruled and denied.

The major contention made on this appeal on which error is predicated is the denial of the motion to suppress the evidence on the ground that appellant was illegally arrested.Appellant contends he filed three motions to suppress and the first motion was heard while he was in a V. A. hospital in Atlanta, Georgia.The motion was denied on May 21, 1979, by Circuit Judge Inge Johnson.Thereafter appellant through and by his attorney filed a "Motion for re-scheduling the motion for suppressing of Evidence," and alleged:

"That the attorney for defendant has been unable to locate the defendant and that he has not ascertained information concerning the whereabouts of defendant."

Judge Inge Johnson made an order on August 1, 1979, re-scheduling the hearing on the motion to suppress the evidence for August 7, 1979, at 1:00 p.m.

Appellant's counsel participated in the hearing to suppress and did not move for a continuance because of the absence of his client.The record reflects that two continuances were had in this case before the case was set for trial on the merits.Honorable Robert M. Hill, Sr., Retired Circuit Judge from Florence, Alabama, was assigned to try the case.One continuance was granted at the request of appellant and the other continuance was made necessary by the conditions of the court docket.The case was reset for trial on September 24, 1979, before Judge Hill.

After the jury was selected, sworn and empaneled and two or more witnesses for the State had testified appellant's counsel made another motion to suppress the evidence and Judge Hill responded:

"The Court notes for the record that the record of proceedings in this case indicate that the defendant first filed a Motion to Suppress the Evidence incident to an unlawful arrest on May 10, 1979, and after hearing the record indicates that the motion was overruled by Circuit Judge Inge Johnson.Subsequent thereto, the defendant filed a like Motion to Suppress the Evidence incident to an unlawful arrest and the same was set for a hearing on the 2nd day of August, 1979, was re-scheduled for August 7, 1979, and said Inge Johnson entered a ruling thereon on August 7, 1979, as follows; which are a part of the record ... 'It appearing to the Court that the defendant's Motion to Suppress the Evidence filed June 6, 1979, raises issues identical with the Motion to Suppress filed by defendant on May 10, 1979, which motion was denied by this court by order dated May 21, 1979, it is therefore ordered that the defendant's second Motion to Suppress be and hereby is denied.Signed by Inge Johnson, Circuit Judge.' "

Nevertheless, Judge Hill permitted the defendant to testify as to the facts and circumstances under which he was arrested.We will summarize his testimony following the summarization of the testimony of the State's witnesses so that the evidence will be in proper sequence.

Deputy Sheriff Lanny Jackson of the Lauderdale County Sheriff's Department, assigned to the North Alabama Drug Unit, testified that, on February 2, 1979, he and other officers went to appellant's home at 227 Lewis Avenue in Muscle Shoals, Alabama, to serve an arrest warrant on appellant.He was accompanied by Investigator Jones of the Florence Police Department and Deputy Sheriff Ronnie May of Colbert County.They were both assigned to the North Alabama Drug Unit.When they arrived at appellant's home at about 10:00 a.m. on February 2, 1979, Deputy Jackson went to the back door and Officers Jones and May went to the front door.After some five or six minutes Officer Jones went to the back door and told Officer Jackson that he saw a man in bed but he couldn't get him to come to the door or the window.Jackson then removed a glass pane from the door and reached in and unlocked the door.He announced that he was with the Sheriff's Department and had arrest warrants and was entering the house.

Jackson further testified that he entered the house followed by Officer Jones.They opened the front door to let Officer May into the house.Officer Jackson remained in the kitchen area where he could watch the bedrooms to prevent anyone from coming out.From this vantage point he could see appellant lying in bed.He said appellant was hard to wake.While Officer Jones was trying to arouse appellanthe and Officer May went through the house to make sure no other person was in the house.The bedroom up the hall from the room occupied by appellant was partly open and the officers could see a plastic bag full of green plant material which appeared to be marijuana and a set of scales on a piece of plywood on the floor in plain view.After making sure appellant was the only person in the house they stopped everything and called the District Attorney's Office to secure a search warrant to search the entire house for other contraband.

Deputy Sheriff Ronnie May left the premises and appeared before the District Judge of Colbert County to secure a search warrant.The affidavit and search warrant are as follows:

"STATE OF ALABAMA

COLBERT COUNTY

"Personally appeared before me, Jerry M. Vanderhoef, Judge of the District Court of Colbert County, Alabama, Ronnie May, who after first being duly sworn by me and who is known to me to be a Deputy Sheriff of Colbert County, Alabama, deposes and says as follows:

"The last term of Colbert County Grand Jury, Reginald Meade was indicted for two offenses, one being the sale of heroin; the second being the sale of cocaine.The said Reginald Meade had not been arrested on the writs following said indictments until this day.The affiant, along with two North Alabama Drug Unit officers, received information the said Reginald Meade was living at 227 Lewis Street, City of Muscle Shoals, Alabama. Upon arriving at said residence within the past two hours, and knocking upon the door there was no response, but the drape in the front window was pulled back and upon looking through the window, a person was observed lying on the bed.The back door was entered by removal of a window-pane.The person lying on the bed turned out to be the said Reginald Meade.In the other bedroom, in plain view was a trash bag filled with what appeared to be plant material and known to the affiant and agents of the North Alabama Drug Unit to be marijuana.Also in plain view in a closet in the hallway next to the bedroom, where the said Reginald Meade was arrested, there was recovered by the officers certain tablets which appeared to be valium, a controlled substance.After the said Reginald Meade was arrested, he made an attempt to dispose of certain objects which were upon his person.Upon search by the North Alabama Drug Unit, these substances appeared to the said agents and the affiant to be controlled substances, to-wit: heroin and/or cocaine.Upon the deputies arriving to transport the said Reginald Meade to the Colbert County Jail, he requested that a black bag be carried with him.The said bag was opened, checked for weapons, etc., and it was found to contain a great deal of currency which at this time has not been counted, but appears to be in the thousands of dollars.Further upon the deputies' attempt to remove the said Reginald Meade to the car for transportation, he asked that he be allowed to wear a certain coat, to-wit: a green army fatigue jacket; that upon search of said jacket, it was found to have in its pockets, syringes and a small brown bottle containing a white substance, which is believed by the affiant to be a controlled substance.

"Based upon the above information recited herein above, the affiant has probable cause for believing and does believe that there is contained in the residence of the said Reginald Meade at 227 Lewis Street, Muscle Shoals, Colbert County, Alabama, other illegal drugs, to-wit: marijuana, cocaine, heroin, amphetamines, and barbituates.

"Upon this information and belief, I request that the magistrate to whom this affidavit is directed to make a determination if there is sufficient probable cause to issue a search warrant for the person and premises herein above described.

"I make this affidavit for the purpose for securing a search warrant for the...