Mullins v. State
| Decision Date | 04 March 1975 |
| Docket Number | 5 Div. 204 |
| Citation | 56 Ala.App. 460,323 So.2d 109 |
| Parties | John C. MULLINS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellant.
William J. Baxley, Atty. Gen., and J. Donald Reynolds, Sp. Asst. Atty. Gen., Montgomery, for the State.
Appellant was indicted, tried and convicted for selling marihuana. The jury declined to assess a fine and the trial court sentenced appellant to fifteen (15) years in Before trial appellant filed a motion to be treated as a youthful offender under the provisions of Title 15, Section 266(1), Code of Alabama 1940, as last amended. The trial court summarily overruled and denied this motion without complying with the mandatory provisions of this law. Morgan v. State, 291 Ala. 764, 287 So.2d 914. On October 29, 1974, we remanded this case for compliance with the above code section.
the penitentiary. At arraignment appellant, in the presence of retained lawyer, pleaded not guilty. This same lawyer represented appellant at trial and throughout all proceedings in the trial court and also represents him on appeal.
The trial court immediately referred appellant's application for treatment as a youthful offender to a probation officer to conduct an investigation and file his report. A hearing was had on November 19, 1974, and testimony was heard orally before the court.
Appellant testified at this hearing and said he was nineteen (19) years of age and was a junior at Auburn University and would be a senior the next quarter; that he was living with his parents and had not missed any time from his college work.
Four Auburn College professors testified in appellant's behalf. They all testified that he was a boy of good character and had an excellent reputation. His attendance record was good and he was an intelligent student and had never demonstrated a discipline problem; that if he was given an opportunity he would definitely have a place in society and would be an honest and productive citizen; that to send a boy like appellant to the penitentiary would have a most detrimental effect upon his after life.
Both parents testified that appellant was a good student; that when he was in summer school he made the highest grades possible--three-point average out of a possible three points; that during one winter quarter he dropped to 2.83 out of a possible 3, but he changed one course and went back to a three-point average.
The reports of the two probation officers were introduced in evidence over appellant's objections and are as follows:
Opelika, Alabama.
Reference is made to our conversation on 11-4-74 in which you requested a
records check on the above described individual.
Mullins first came to the attention of the Law Enforcement Authorities when
as a Juvenile he was arrested by the Auburn Police Department on 7-13-71
for Possession and Sale of Heroin and Possession and Sale of LSD. Mullins was
found guilty in Juvenile Court and was placed on one year probation on
9-13-71. The subject successfully completed his probation and was
released from supervision on 9-16-72.
Mullins had the following Adult Charges:
Mullins had the following Adult Criminal Charges:
Auburn Police 2-27-73 Reckless Driving $36.50
Dept. 3-15-73 Speeding 21.50
Possession of Marijuana No billed
7-27-73 Fighting No. disp.
shown
8-10-74 Speeding $21.50
I hope the above information serves your purpose, and if I can be of any further help please don't hesitate to ask.
Sincerely,
Jim V. Lord
Parole and Probation Supervisor II
Opelika, Alabama.
JVL/mn" At the conclusion of the hearing the court decreed that 'the defendant should not have been tried under the Youthful Offenders Act and was properly tried as an adult in this court, and that he should not be again tried under the Youthful Offenders Act.'
At this time we are not sure that we have a right to review the Discretion vested in trial courts when applying the Youthful Offenders Act. Had we been sitting as a trial judge in this case, our decision might have been different. Even had we decided to try him as an adult we certainly would not have meted out a sentence of fifteen years in the penitentiary to a young man who seemed to have had a promising future in our mixed-up society.
We turn now to the merits of this case.
Robert M. Patterson who had been employed with the State Department of Public Safety for nine and a half years was the first witness for the state. He testified that he lived in Huntsville, Alabama, but for the past two years he was on special assignment as a State Narcotics Investigator. He was asked how he dressed and with whom he associated when he was doing undercover work and he said,
'I dress according to the people that I am working with, I dress similar to the people that I am trying to get in with, and I am trying to get in with, infiltrate, people who traffic in illegal drugs.'
He testified that for about fourteen (14) days from February, 1973, to the middle of April, 1973, he worked in the Auburn-Opelika area of Lee County with an informer named Jimmy Stanfield; that in order to throw people off guard, Stanfield would introduce him as a man Stanfield met while an inmate of Draper Prison.
He further testified that on the night of February 17, 1973, he was driving an unmarked state car on Magnolia Street in the direction of a place called Pasquales in Auburn, Alabama, with Stanfield as his passenger. They observed two boys walking away from Pasquales and Stanfield rolled the window down on the passenger's side and shouted to the two boys to come over to the car. They walked to the side of the car where Stanfield was sitting but Patterson could not hear the conversation. It was a very cold night and Paterson invited them to get in the car. They got in the backseat of the car and Stanfield asked them if they knew where they could get some good pot. These boys turned out to be appellant, who was 17 years old at that time, and one Greg Glass, who was 15 years of age. Appellant and Glass started naming off different brands of marihuana that could be had and the price of each brand. They mentioned the names of Mexican, Columbian, Brazilian, and some domestic weed.
Patterson asked both appellant and Glass if they had the marihuana on them and they said no. He then asked them how long it would take them to get it and appellant said it would take about three (3) minutes. Patterson asked the price of the Mexican brand and Glass said $16.00. Patterson gave Glass $16.00 and both boys got out of the car and started walking in the direction of Pasquales. Both boys returned to the car in five minutes and got in the backseat. Appellant leaned over and placed a lid on the frontseat of the car saying, 'Here it is.' Patterson picked up the package and examined it, looked at it, smelled it and placed it in his left front pocket.
Patterson further testified that he kept the marihuana in his pocket until he got back to his motel room where he placed it in an envelope and wrote the names 'John and Greg' on the front of the envelope and kept it in the room with him until around noon the next day when he turned the envelope over to Sergeant Elbert J. Gosdin, who came to his room in the Holiday Inn.
Sergeant Gosdin was also a State Trooper with the Department of Public Safety where he had been so employed for thirteen years but had been assigned to drug investigative work since 1971. He was stationed at Opelika. He testified that he received a white envelope from Sergeant Patterson at the Opelika Holiday Inn and on the outside of the envelope were the names of 'John and Greg'; that he opened the envelope and observed the contents and thought it was marihuana. He put the contents of the white envelope into a larger manilla envelope and, 'I wrote Greg and John, white males, Lee County, I put the date and I put a plastic bag containing brownish green vegetable matter on the front and then I put on the back, I wrote along the long seal of the envelope Sergeant E. J. Gosdin, P.O. Box 2368, Opelika, and down on the bottom I put my initials on the bottom seal and then I put tape over all of the writing with the exception of...
To continue reading
Request your trial
-
Arnold v. State
...While the trial judge's comments concerning "a day of reckoning" "would probably have best been left unsaid," Mullins v. State, 56 Ala.App. 460, 467, 323 So.2d 109, 116, cert. quashed, 295 Ala. 412, 323 So.2d 116 (1975), we cannot say, applying all of the principles set out above to the fac......
-
Smith v. State, 6 Div. 756
...at the commencement of the chain." Sexton at 1180. See also Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109 (1975); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (1960). It has been shown to a reasonable probability that the money ad......
-
Fike v. State
...object as it existed at the commencement of the chain. Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109 (1975); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. den., 346 So.2d 11......
-
Tyson v. State
...the law. Johnson v. State, 36 Ala.App. 634, 61 So.2d 867 (1952); Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109, cert. quashed, 295 Ala. 412, 323 So.2d 116 (1975). "It is only when the Government's deception actually implants the crimi......