Nance v. State, 4 Div. 967

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: BARRON
• Citation: 424 So.2d 1358
• Parties: Hoyt Thomas NANCE v. STATE.
• Docket Number: 4 Div. 967
• Decision Date: 12 October 1982

Page 1358

424 So.2d 1358 Hoyt Thomas NANCE
v.
STATE. 4 Div. 967. Court of Criminal Appeals of Alabama. Oct. 12, 1982.
Rehearing Denied Nov. 2, 1982.
Certiorari Denied Jan. 28, 1983
Alabama Supreme Court 82-126.

Page 1359

Cary L. Dozier, Troy, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

BARRON, Judge.

Hoyt Thomas Nance was indicted by the July 1980, term of the Pike County Grand Jury for first degree theft and conspiracy to commit first degree theft under §§ 13A-4-3, -8-3, Code of Alabama 1975. The jury found him guilty of the lesser included offense of attempt to commit first degree theft. Ala.Code, § 13A-4-2 (1975). The State gave both oral and written notice of its intention to invoke the provisions of the Habitual Felony Offender Statute. A sentencing hearing was held at which the State proved three prior felony convictions. The trial court then sentenced appellant to fifteen years' imprisonment. Ala.Code, § 13A-5-9(c)(1) (1975). Hence this appeal.

Larry Sasser testified that sometime in June 1980, he met United States Treasury Department undercover agent Mike Harris. At the time, Sasser was unaware that Harris was a federal agent. Harris came to his house and expressed his desire to purchase some counterfeit money. Sasser put Harris in contact with a friend, William Cawley.

The three later met at Cawley's residence and discussed the sale of the counterfeit money. Cawley exhibited some counterfeit bills to Harris. Harris told Cawley that he would buy $100,000 of the bogus bills. Sasser

Page 1360

stated that another meeting was held at Cawley's residence, at which time appellant was introduced to Harris. Sasser stated that appellant wanted to meet Harris and make a deal. The arrangement was for Harris to buy $100,000 of counterfeit money for $20,000.

Subsequently, Sasser and Harris met Cawley at a pre-determined location near Brantley. There Cawley informed Harris that the final meeting was to be held at Gowan's Truck Stop in Montgomery. Harris refused to meet there and the deal stalled. After arriving home, Sasser was called by both Harris and appellant. Both expressed their desire for the deal to be finalized. Another meeting place was chosen, that being the Troy Holiday Inn.

Just before dark on June 25, 1980, Sasser and Harris met an individual named Linwood Ridley in the lounge of the Troy Holiday Inn. There the final details of the transaction were discussed. It was agreed that while Sasser and Ridley left the motel to pick up the bogus money, Harris would bring the $20,000 to appellant in room 140. Sasser and Ridley left the motel and, after traveling a short distance, Ridley handed Sasser some car keys and told him to get the counterfeit money out of a nearby parked car. Sasser exited the vehicle and Ridley immediately drove away. The keys did not fit the car. Sasser stated that it was at this point that he realized that the deal was a "rip-off." He paid a passerby to drive him back to the motel. Once there, he yelled to Harris that the deal was a "rip-off," and was immediately arrested.

Sasser stated that he knew nothing about stealing the $20,000. Based on that, appellant moved to exclude any testimony regarding counterfeit money.

United States Treasury Department undercover agent Mike Harris testified that on June 11, 1980, he was contacted by Coffee County Sheriff's investigator Roger Booth, who informed him of the possibility of counterfeiting activities occurring in the county. Later that day, Harris was introduced to a confidential informant. On June 12, the informant introduced Harris to Sasser. At this meeting, Sasser told Harris that he knew of some individuals who were interested in selling some counterfeit money.

On June 13, Sasser accompanied Harris to the residence of Cawley. After being introduced, Harris and Cawley discussed a sale of $100,000 in bogus bills for $20,000. Cawley gave Harris two counterfeit bills to examine. Another meeting was set for the following day where Harris would be introduced to, as Cawley called him, "the money man." On June 14, Harris and Sasser returned to Cawley's residence where he met appellant, who was using the name of Glenn Pike. Appellant controlled the meeting and confirmed the initial agreement. He informed Harris that another individual had to be contacted before the deal could be finalized. After other meetings and communications, the transaction was set for June 25, at 5:00 p.m. at the Holiday Inn in Troy, Alabama.

At 5:00 p.m. on June 25, Harris and Sasser met with an individual named Linwood Ridley in the motel's lounge. Ridley confirmed the terms of the transaction and suggested methods of successfully passing the counterfeit bills. Ridley suggested that Harris and Sasser follow him to room 140. Room 140 was registered to a "Mr. Glenn Pike." About one minute after Ridley had left, they went to the room, knocked, and entered. Present were Ridley and appellant. It was agreed that while Ridley and Sasser drove to an undisclosed location to pick up the bogus money, Harris would deliver the $20,000 to appellant at the motel room. Harris stated that he understood the agreement to be that he would remain with appellant while he counted the money. Sasser and Ridley left while Harris retrieved the $20,000. He returned to room 140 and handed it to appellant. After Harris handed the money, in a paper bag, to appellant, appellant closed the door. Harris and other agents, deployed around the motel,

Page 1361

converged on the room, identified themselves, and demanded access to the room. Appellant opened the door and was promptly arrested. Immediately thereafter, Harris stepped out of the room and closed the door to await the return of Sasser.

When Sasser returned, he hastily approached Harris and told him that the deal was a "rip-off." Sasser was then arrested.

Subsequent to Sasser's arrest, a search of the motel room was conducted. Although no counterfeit money was found, a large hole concealed by the bathroom mirror was discovered. The hole opened into a maintenance corridor running between the rooms. A hole was found in the corridor which opened into a maintenance room. Harris took several photographs of the holes, corridor, and maintenance room.

Harris testified that he checked several hotels in Montgomery in the vicinity of Gowan's Truck Stop to determine whether appellant had rented a room. He found that on June 15, a room at the Scottish Inn had been registered in the name of Glenn Pike. The motel manager allowed him to examine the room. Harris found a hole in the wall located behind the bathroom mirror. The hole led to a maintenance room.

Harris stated that appellant was arrested for the federal offense of conspiracy to sell counterfeit money. 18 U.S.C. §§ 371, 471 (Supp. IV 1976). He did not envision theft charges arising out of the investigation. However, when Harris presented his report to the U.S. Attorney's office, he was informed that "the actions of the people involved [were] not for me to buy a hundred thousand dollars in counterfeit. It was to steal the twenty thousand dollars from me." Consequently, he was advised that no federal charge could be made. Rather, the matter should be presented to the proper district attorney's office for action.

United States Treasury Department agent George McDavid testified that he was part of the surveillance team assisting Harris in the counterfeit money purchase at the Troy Holiday Inn. McDavid observed the actions of Sasser, Ridley, and Harris from a van parked near room 140. McDavid stated that he and Harris had agreed to make an arrest once the $20,000 left Harris's control. When McDavid saw Harris hand appellant the money and appellant shut the door, he exited the van, approached the room, identified himself, and demanded entry. Once appellant complied with the request, McDavid arrested him. He gathered the $20,000 which was lying on the bed and returned it to the paper bag. He opined that once appellant received the money and closed the door a theft had occurred. McDavid searched appellant and found two driver's licenses, one in appellant's true name and the other in the name of Glenn Pike. McDavid advised appellant of his Miranda rights, and his testimony established the proper voluntariness predicate. He questioned appellant, who stated, "I don't know what I could tell you at this time." Appellant indicated that there was no counterfeit money in the room. After ascertaining appellant's true identity, appellant told McDavid "that his job was to take the money and get out...." Sasser, Harris, and McDavid testified before the jury to substantially the same facts as these recounted above.

Appellant had previously filed a written motion to suppress all evidence seized on the basis of the illegality of his arrest and non-compliance with the guidelines of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The motion was never ruled upon by the trial court, and appellant did not request the trial court to rule and did not object to the trial court's failure to rule. Consequently, nothing is presented for our review. Parker v. State, 406 So.2d 1036 (Ala.Cr.App.), cert. denied, 406 So.2d 1041 (Ala.1981); Boykin v. State, 398 So.2d 766 (Ala.Cr.App.), cert. denied, 398 So.2d 771 (Ala.1981).

I

Appellant contends that his arrest was illegal as probable cause did not exist. We disagree.

Page 1362

As we stated in Tice v. State, 386 So.2d 1180, 1183 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980):

"An officer may arrest without a warrant when 'a felony has been committed and he has reasonable cause to believe that the person arrested committed it.' Section 15-10-3, Code of Ala.1975. The rule of reasonable or probable cause is a 'practical, non-technical conception.' Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States,...