Motes v. State

• Decision Date: 24 January 1978
• Docket Number: 8 Div. 980
• Parties: Billy MOTES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 712

356 So.2d 712

Billy MOTES v. STATE.

8 Div. 980.

Court of Criminal Appeals of Alabama.

Jan. 24, 1978.

Rehearing Denied Feb. 21, 1978.

Cecil Wayne Morris, Huntsville, for appellant.

William J. Baxley, Atty. Gen. and Vanzetta Penn Durant, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

Billy Motes was tried on a two-count indictment charging him with the possession and sale of marijuana in the form of hashish in violation of the Alabama Uniform Controlled Substances Act. After pleading not guilty, he was tried, convicted and sentenced to three years in the State penitentiary.

The evidence presented by the State showed that on May 20, 1976, Glen Kilpatrick, an undercover narcotics agent for the North Alabama Drug Unit, and Mike Etheridge went to a house occupied by the Appellant, Billy Motes, and his wife. It was about 7:00 P.M., when the two arrived at the house. In response to their knock, the appellant's wife came to the back door, followed by her husband.

According to Kilpatrick, Etheridge asked appellant, "did he have anything to smoke." The appellant replied that he did not have any "pot" but did have some "hashish." They were invited in and Kilpatrick said they walked through the kitchen into the living room and sat down.

The appellant then went to the bedroom and returned with a small piece of tinfoil which he opened and handed to Kilpatrick. Kilpatrick, in turn, looked at it and handed it to Etheridge, who commented, "looks pretty good." The package was returned to Kilpatrick, who placed it in his pocket and gave the appellant a ten-dollar bill. Kilpatrick testified that the cost of the substance was seven dollars per gram and that the appellant gave him three dollars change. He went on to say, though, that there was only one-half gram in the tinfoil.

Kilpatrick recalled that after the sale they discussed making an additional purchase and were told to check back during the weekend. The two men left at the conclusion of the discussion and Etheridge drove Kilpatrick back to his car.

When Etheridge drove away, Kilpatrick placed the "hash" in a metal box which he kept in the trunk of his car. He stated that he alone had access to the metal box in his car and that the substance was later put in an envelope and turned over to Sgt. Bogus on May 25, 1976.

According to Kilpatrick, at the time he made the purchase, the appellant had hair over his shoulders and wore a beard. During the trial he made an in-court identification of the appellant and identified a picture depicting him with a beard and long hair, which he said accurately portrayed Motes as he appeared on May 20th when the sale was made.

Kilpatrick explained that the appellant's "green shingles type house" was located about two or three miles from New Hope, Alabama, at a place called Big Tree on Paint Rock Road.

During cross-examination, Kilpatrick testified that he made a case report after the arrest was made and in that report he described the appellant at the time of the arrest as being approximately six feet, seven inches tall and weighing one hundred and ninety pounds. Further, he said he was approximately twenty-two years old, was tall and slim, had long brown hair and wore a mustache and beard.

Although appellant's wife was not present during the sale, Kilpatrick described her as being about five feet, five inches tall and weighing approximately one hundred and twenty-five pounds, and having long, dark hair.

On further cross-examination, Kilpatrick described the living room and some of its contents, which was later contradicted by Motes' wife. He said that after entering the house through the kitchen, they remained in the living room for approximately twenty or twenty-five minutes.

Michael Joseph Etheridge testified that he was twenty-two years of age and had known Motes in New Hope, Alabama, since about the ninth grade.

According to Etheridge, on May 20, 1976, about 7:00 P.M., he and Glen Kilpatrick went to the appellant's house on Paint Rock Road. He described the house and stated that prior to that date he had gone there on numerous occasions but stated that he was not sure when Motes first began occupying the house.

Etheridge recalled that they knocked on the door of appellant's house and his wife, Diane, responded. They asked for the appellant and Motes came to the kitchen from the living room. According to Etheridge, they asked Motes, "did he have anything we could get high on, or something like that," to which Motes replied that "he didn't have no pot, he had some hash to sell." The appellant told them that the price was seven dollars per gram and went into a bedroom and returned with a gram of hash in a piece of tinfoil. Motes handed it to Kilpatrick who turned it over to Etheridge for his examination. Etheridge returned the tinfoil and its contents to Kilpatrick who paid Motes ten dollars. The appellant gave Kilpatrick three ones in change and said, "wait a minute, we'll smoke some." Etheridge testified that he said "no" that he had to pick up his wife and that they had to go.

Etheridge testified that during the time of the transaction the appellant's wife was not present and did not participate.

Further, he recalled that he and Kilpatrick remained in the house no longer than fifteen minutes. When they left they went out the back door and Etheridge drove Kilpatrick back to his car. Etheridge testified that he only looked at the substance in the living room and afterwards did not handle or touch it in any way.

On cross-examination, Etheridge testified that while in jail he had become acquainted with Officer Glen Kilpatrick. He was in jail on a charge of leaving the scene of an accident and he stated that he did receive some consideration on that charge for giving his assistance to the police. Etheridge said he was not sure whether the charge involved a misdemeanor or a felony but that the bond was three thousand dollars. Further, he related that he later plead guilty and received "60 days."

Etheridge admitted that he had smoked "pot" but said that he was not using drugs at the time of the transaction. He would not classify himself as a regular user of marijuana and stated that he had never used any other drugs, even though he had smoked marijuana once or twice a week during the past couple of years.

Sergeant Howard Bogus, of the North Alabama Drug Unit, testified that on May 25, 1976, he received some evidence in a brown manila envelope from agent Kilpatrick. Bogus said that he did not know what was in the envelope but made an in-court identification of the packet bearing his initials.

Bogus stated that at the time he received the packet it was sealed. He signed his name, put his initials on it and took it to the toxicology lab about 3:20 P.M. on May 25, 1976. There he gave it to Kim Gibson. According to Bogus, during the hour and twenty minutes that the envelope was in his possession, it did not leave his presence and no one else touched it.

Kim Gibson, employed by the State of Alabama, Department of Toxicology, as a Crime Laboratory Analyst II, in the Huntsville division, testified that on the afternoon of May 25, 1976, she received the manila envelope in question from Sgt. Bogus. She analyzed the material and determined the substance to be "the resin of marijuana." She explained that the substance is classified a resin and is generally extracted from crushed marijuana plant material. Further, she said that the resin of marijuana contained cannabinoids and through testing she had identified the substance as tetrahydrocannabinol.

Deputy Sheriff Terry Hutcheson worked in Madison County, and in November, 1976, was assigned to the intelligence unit. He testified that he had arrested the appellant on the present charge. At that time, Motes had a beard and shoulder-length hair. During the trial he identified a photograph that depicted the appellant on the day of his arrest. The arrest was made at the appellant's residence, a green, shingled house located on Paint Rock Road outside of New Hope.

At the end of Hutcheson's testimony, the State completed its case and, after the defendant's motion to exclude the State's evidence was overruled, the appellant testified in his own behalf.

Motes testified that on May 20, 1976, he lived in a house trailer approximately twenty miles from New Hope in Woodville, Alabama. Further, he said that a year prior to this time he and his wife had lived in Scottsboro.

According to Motes, he had moved to New Hope after his mobile home in Woodville was repossessed on June 28, 1976. He said that he and his wife had rented a "gray-siding house," belonging to a Mrs. Henry Graves, and had moved into the house the third or fourth week of June.

Motes denied seeing Etheridge and Officer Kilpatrick on May 20, 1976, and denied selling the hashish. He admitted that Etheridge had been to his house on numerous occasions but said that he was never accompanied by Officer Kilpatrick.

Motes further denied threatening Etheridge and said that he had never made any statement to Officer Kilpatrick or seen him before the day of the trial.

Motes testified that on May 20, 1976, he was at his trailer in Woodville, Alabama, and that his wife was working at Eckerds Drugs in Scottsboro. He said that he had never lived in a green shingled, house in New Hope, Alabama and that during May and June of 1976, his living room furniture was black vinyl.

Motes went on to testify that on May 20, 1976, he weighed about 150 pounds and had never weighed 190 pounds. The defendant indicated he could name at least ten people in the area that would fit his general description.

During cross-examination, Motes stated that in May of 1976, he owned a 1966 Nova automobile and that on November 20, 1976, he did not own an automobile.

Lorene Graves testified that in June, 1976, she rented a house to Billy Motes. She said that the appellant and his wife rented the house from her for about five months and that she had gone...