Napier v. State

• Decision Date: 28 June 1977
• Docket Number: 1 Div. 747
• Citation: 357 So.2d 1001
• Parties: Damon Shelton NAPIER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1001

357 So.2d 1001

Damon Shelton NAPIER v. STATE.

1 Div. 747.

Court of Criminal Appeals of Alabama.

June 28, 1977.

Rehearing Denied July 26, 1977.

David L. Barnett, Mobile, for appellant.

William J. Baxley, Atty. Gen., Joseph G. L. Marston, III, Asst. Atty. Gen., and John David Whetstone, Sp. Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The appellant was indicted and convicted for murder in the first degree by giving heroin to David Archie Owings and sentenced to life imprisonment. He is represented by court appointed counsel both at trial and on appeal.

Four issues are presented on appeal: (1) The sufficiency of the indictment; (2) a claim of double jeopardy; (3) the sufficiency of the evidence which includes (4) an allegation that the appellant was convicted on the uncorroborated testimony of accomplices.

In February of 1976, David Archie Owings, age twenty-one years, of Birmingham, Alabama, contacted his friend Ronald Dale Quarles, age twenty-three, of Mobile, Alabama. Owings had "come into" some money, about fifty thousand dollars, and wanted Quarles to arrange the purchase of a large quantity of marijuana by contacting the appellant, Damon Shelton Napier. Owings knew that the appellant could locate the marijuana. Quarles was also familiar with the appellant. The appellant had previously supplied morphine and heroin to Quarles and his wife.

On Thursday, February 26, 1976, Quarles, his wife Deborah Diane, and the appellant met Owings at the Mobile airport. Owings had come to Mobile so they could all go to Mexico and "set up a dope buy". The four went to the apartment of the appellant where they picked up the appellant's wife, Sandy, and another girl, Catherine Cook. From there, the crew of six departed for Nogales, Arizona, which is located on the international boundary between the United States and the Republic of Mexico. They all went in Quarles' van, the appellant having agreed to pay for the gas and to pay Quarles "some money" for the trip.

The group went to Mexico for the express purpose of merely "setting up" a marijuana buy. They did not intend to make the actual purchase on this trip.

By driving continuously, the group arrived in Nogales around 3:30 on the morning of February 27th. They found a hotel room where they spent the remainder of the night. Later that morning, Owings, Quarles, and the appellant left for Nogales, Mexico, leaving the three women at the hotel. The appellant had a Mexican connection with whom the three met and discussed the purchase of some marijuana. The negotiations were conducted both in Spanish and English between the appellant and the Mexican.

After the negotiations, Quarles returned to the Arizona side of Nogales and got the three women who had been waiting at the hotel. They crossed the border into Mexico and met Owings and the appellant at a bar. Quarles and the appellant then went to the Mexican's house while Owings and the women went shopping.

Following the appellant's directions, Quarles drove the two of them to the house of the Mexican connection. At the house, they received one ounce of heroin packaged in a condom. Although Quarles did not hear any of the negotiations or see any money exchanged, he testified that the appellant paid one thousand dollars for the heroin. There was no testimony that Owings gave the appellant the money for this purchase. Both Quarles and the appellant sampled the heroin and found that it was "good". Four or five hours later they returned to Nogales.

They met Owings and the women in a lounge. At this time, Quarles was obviously heavily under the influence of heroin. This conclusion was based upon the testimony of Quarles' wife who stated that she had observed her husband under the influence of heroin "countless" times. The evidence is conflicting as to whether Deborah Diane received the heroin from the appellant or her husband. However once she had possession of the heroin, without instruction, she immediately went to the bathroom and inserted the heroin-filled condom into her body. This permitted the party to smuggle the heroin over the border.

When the party was a couple of hours into Arizona, Deborah Diane removed the condom from her body and returned it to the appellant. She was given a sample of the heroin. In spite of the fact that she had been using heroin for six or seven months, she "just about" overdosed and had to be revived.

On the morning of March 1, 1976, the party arrived in Mobile. After taking Catherine Cook home, they went to the appellant's apartment where the appellant gathered the equipment he would need to "cut" the heroin. This included a bottle of dextrose and a set of scales. Then the appellant, his wife, and their two or three year old child, drove to the Quarleses' apartment. The Quarleses and Owings reached the same destination in Quarles' van. At this time there were no narcotics in the Quarleses' home.

Shortly after arriving, the appellant began the process of cutting the heroin with dextrose. The appellant had purchased "Mexican Brown" heroin of high but unknown purity. In cutting it to produce the twenty-five dollar "bags" for sale on the street, the appellant had, at the same time, to be sure that the "cut" was sufficient to meet the requirements of his customers and yet adulterated enough to maximize his profits. To solve this problem, the appellant simply asked his "friends" to "test the dope to see what would be a good $25.00 bag to sell".

The appellant gave heroin to Steve Rhodes, who had been using heroin for a year and who had been living with the Quarleses; to Deborah Quarles, who had been using the narcotic for six or seven months; to Ronald Quarles, who had been using for about a year; and to David Archie Owings, who had never used heroin before. The appellant gave them samples of the heroin he was cutting because he wanted to know how good it was. For Owings, the Monday before Mardi Gras, March 1, 1976, would be the last day of his life.

Each of these individuals had two injections of heroin about one hour apart. Rhodes and Quarles agreed that the heroin cut by the appellant that day was much stronger than the street heroin he had previously been selling them.

The appellant did not force or coerce Owings to accept the heroin and Owings injected the narcotic into his own body. Owings took his first shot between one and two o'clock P. M. and little effect was noticed. About one hour later he took another shot and immediately went to sleep. He would never fully regain consciousness.

Despite the fact that Owings had never used heroin before, he was no stranger to the drug world. Quarles testified that he had known Owings in Birmingham and that there they had shot up anything they could get their hands on; "THC ¹, MDA, ² cocaine, barbituates, anything we could find". Mrs. Quarles testified that Owings had been selling dope in Birmingham.

After the appellant finished cutting the heroin, he left the narcotic at the Quarleses' home because his apartment was too well known to the police.

During the night, it was noticed that Owings was having difficulty breathing. He could not be awakened. He was placed in a bathtub and cold water was poured over him. Rhodes and Quarles tried to get him to walk. The appellant was called and returned to the Quarleses' home. He poured water on Owings and placed ice cubes in the bathtub. After Owings seemed to revive a bit the appellant left and Owings was put back to bed.

The next morning Owings was found cold and dead. Rhodes took the heroin to the appellant who hid it. At trial each witness testified that he had no financial interest in either the purchase or sale of the heroin and that it "belonged" to the appellant.

Les Solomon was a friend of the Quarleses and an acquaintance of the appellant. He did not use heroin and was not involved with narcotics. On March 1, 1976, Solomon and another friend, Jeff Baker, were on their way home to Birmingham after having been to New Orleans for Mardi Gras when they decided to drop in on the Quarleses. They intended to spend the night and catch Mardi Gras in Mobile the next day.

Solomon arrived at the Quarleses' home at about five o'clock on the afternoon of March 1st. At that time the appellant had finished cutting the heroin but was still in the kitchen where he had been cutting it. Solomon saw the appellant in the kitchen and the scales he had used to cut the heroin. The appellant told him that "they had copped some (Mexican heroin) down there and he had just cut it". The appellant left the Quarleses' home thirty or forty minutes after Solomon arrived. It was Les Solomon who found Owings' body the next morning.

A state toxicologist, after being properly qualified as an expert, testified that on being injected, heroin is quickly converted to morphine. The quantities of morphine in Owings' body were consistent with death by overdose of heroin. No other drugs were detected. The toxicologist testified that in his opinion death was due to an overdose of narcotics.

Besides attending the autopsy of the deceased and receiving several tissue samples, the toxicologist also examined and tested a packet of suspected heroin that the appellant had cut. The toxicologist testified that the contents of the packet proved to be 36.5% pure heroin. Street heroin is normally only 2 to 6% pure.

Dr. F. T. Boudreau, a County Pathologist in the Mobile County Coroner's Office, performed an autopsy on the deceased. In his opinion the deceased died of pulmonary complications of acute narcotism or, in other words, of an overdose of heroin. Dr. Boudreau found that there was "generalized organ congestion involving all of the organs" which is "the universal finding of this type of death". He stated that in his opinion, the deceased was not an addict and although he found recent injection marks inside Owings' elbows, he found no old marks. According to Dr. Boudreau, heroin is an organic poison and a dangerous...