Messelt v. State
| Decision Date | 16 August 1977 |
| Docket Number | 8 Div. 687 |
| Citation | 351 So.2d 630 |
| Parties | Jack MESSELT v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Laura Jo Wilbourn, Huntsville, for appellant.
William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
A jury returned a general verdict finding defendant guilty under a two-count indictment charging him with a violation of the Alabama Uniform Controlled Substances Act of 1971 (Code of Alabama Recompiled, 1973 Cum. Supp. Tit. 22, §§ 258(25)-258(60)). One count charged him with possession of one hundred tablets of amphetamine; the other charged that he did unlawfully "sell, furnish or give away one hundred tablets of amphetamine." The court fixed his punishment at imprisonment for seven years and sentenced him accordingly.
The evidence in the case was brief, particularly the testimony of the State as to the conduct of defendant. It is contained in the testimony of one witness, an undercover officer of the Huntsville Police Department. He testified that at 3:10 a. m., September 5, 1973, he went to the apartment of defendant at 120 Smith Street, Huntsville, and purchased one hundred tablets from him, after telling him that he was interested in some "speed," which he said is the street name for amphetamine. The witness further testified that he kept intact the tablets or pills purchased until he could get to the office and then placed them in a white envelope, on which he wrote an identifying legend, and placed it in a metal locking cabinet.
On cross-examination of the undercover officer, it was shown by him that he was accompanied to defendant's apartment by a paid informer of the police department, a girl he knew by another name, but whom he identified as "Sherrie." He said Sherrie informed him that they could probably obtain some speed at defendant's home. He said that Sherrie knocked at the door at first and then he knocked, and after they had knocked eight or nine times, defendant came to the door and asked who it was and she said, "Sherrie," and defendant "said something I don't recall what it was and then he opened the door and Sherrie introduced me to him and we went on in the living room through the front of the house." He said Sherrie, he thought, first asked him if he had any speed and he said, "Yes." The three apparently talked together about five or ten minutes and then Sherrie "just faded out of the conversation." Thereafter, according to him, he and defendant had a "random conversation," during which Sherrie was at one time "sitting on the couch but she got up and either went to the bathroom or to a bedroom I don't know where she went." He said he went into the kitchen with defendant, where defendant obtained the "white crosses" out of a "larger baggie."
Mr. Alan Adair, a criminalist with the Alabama Department of Toxicology and Criminal Investigation, testified that he took ten of the tablets from the envelope in which they had been placed by the undercover agent, and subjected them to a detailed, appropriate micro-chemical test and determined that they contained amphetamine.
Defendant testified that he had known Sherrie but that his relationship with Sherrie "was about to break apart" prior to the time he and the undercover agent came to his apartment, and the transaction took place with reference to the amphetamine. He said that at that time he was going with a girl by the name of Lynn and that she was with him in the bedroom when the undercover agent and Sherrie came to his apartment and obtained the amphetamine. He said that on the day or night before Sherrie brought "two little baggies of what we call white crosses" and asked him to keep them for her; he stuck them in his dresser drawer. According to defendant, Sherrie and the undercover agent came to his apartment at 3:00 a. m. on the morning of September 5, 1973, and banged on the doors and the windows. At that time, he was in the bedroom with Lynn, and the apartment was being occupied by another person, a young man by the name of Bob, who first went to the door, cracked the door and went back to his bedroom. Sherrie than came over and rapped on his door and "I got up and she introduced me to this individual that was with her as a cousin from Nashville that was on his way to as a truck driver and it was Three o'clock in the morning and she said she needed that speed." He said he went back in the bedroom and obtained the speed for her. He said:
The undercover agent had testified, as to which there was no conflict in the evidence, that defendant charged him forty dollars for the tablets, but that the undercover agent only had thirty dollars with him at the time, that he gave defendant twenty dollars with the understanding between them that he would pay him the other twenty, which was never paid.
Lynn testified that she was formerly a close friend of defendant, which close friendship she emphasized by stating that she was living in the apartment with defendant, and was with him in his bedroom, at the time of the occurrence involved; that Sherrie came there the night before and gave defendant a small bag and asked defendant if he would keep it for her. According to her, the next night, when Sherrie and the undercover agent came to the apartment, Sherrie told defendant that she needed what she had given him the day before; defendant came in the bedroom, "got it and he took it back out and he handed it to her." At the time of the trial, it had been "a year and a half" since she dated defendant.
Robert, who was sharing the apartment with defendant, testified as to the relationship between defendant and Lynn, as well as to the previous relationship between defendant and Sherrie, and that he was in the apartment when Sherrie and the undercover banged on the door and window, that he let them in and then "went directly back to bed but I did hear some voices."
A major insistence of appellant is that the evidence sustained his claim of entrapment and that by reason thereof, he should have been found not guilty. He requested in writing a general charge in his favor, with hypothesis, which was refused by the trial judge.
Appellee takes the position that appellant is precluded from the defense of entrapment by reason of a denial that he committed the offense charged. This principle is now well established in Alabama. Owens v. State, 291 Ala. 107, 278 So.2d 693 (1975); McCarroll v. State, 294 Ala. 87, 312 So.2d 382 (1975). We turn to the question whether defendant denied that he committed the offense charged. As stated in McCarroll :
Although the evidence is not altogether satisfactory as to all of the particulars that took place at the time of the commission of the alleged crime, we do not understand that defendant denied that he received twenty dollars from the undercover agent for the controlled substance received by the agent. This was the positive testimony of the agent. Defendant was not asked either by the State or defendant's counsel whether such was true; but, as we view the record, that feature of the transaction was assumed by all to be true, and there was no issue made as to it. Furthermore, unlike the facts in McCarroll, where defendant admitted he sold capsules to the undercover agent, but contended they contained whole wheat flour, instead of a prohibited substance, defendant in instant case admitted enough to show that he knew that the tablets were contraband. Defendant did deny that "the pills were his," as urged by appellee, but he did not deny that he possessed them or that he sold them. His statement that he "didn't sell them per se" is, in the context of the record as a whole, to be understood as an admission that he took part in the transaction, including that part testified to by the undercover agent, as to which there is no conflict in the evidence, wherein the passing of twenty dollars from the agent to defendant is shown.
In addition, unlike Owens and McCarroll, all parties on the trial of this case, including the court, the State and defendant, recognized the defendant's standing to insist on his defense of entrapment. The trial court orally charged, and gave the jury some written charges requested by defendant, on the subject.
In a number of appeals in Alabama from convictions of possession or sales of narcotics or drugs, efforts were made to show that defendant was entitled to an acquittal by reason of entrapment. In most, if not all, of them, the efforts failed. Boswell v. State, 290 Ala. 349, 276 So.2d 592, app. dis'd,414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1973); Reynolds v. State, 56 Ala.App. 509, 323 So.2d 394, cert. denied 295 Ala. 415, 323 So.2d 404 (1975); Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied, 292 Ala. 741, 298 So.2d 639 (1974); Pinson v. State, 52 Ala.App. 444, 293 So.2d 869. In Boswell, the Supreme Court expressly approved what was stated in Johnson v. State, 36 Ala.App. 634, 636, 61 So.2d 867, 869 (1952), as follows:
"(E)ntrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who in fact does commit the essential acts constituting it, merely because an officer of the...
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Messelt v. State, 8 Div. 883
...adopted as that of the Court. The judgment below is hereby DISMISSED. All the Judges concur. 1 Messelt v. State, 8 Div. 687, 8 Div. 712, 8 Div. 754, Ala.Cr.App., 351 So.2d 630, 636, 640 (1977). ...