O'Neal v. State, No. CR-90-1668
| Court | Alabama Court of Criminal Appeals |
| Writing for the Court | JAMES H. FAULKNER |
| Citation | 602 So.2d 462 |
| Docket Number | No. CR-90-1668 |
| Decision Date | 13 March 1992 |
| Parties | Derrick LeKeith O'NEAL v. STATE. |
Page 462
v.
STATE.
Rehearing Denied May 1, 1992.
Certiorari Denied Aug. 21, 1992
Alabama Supreme Court 1911311.
Margaret Y. Brown, Auburn, for appellant.
James H. Evans, Atty. Gen., and Thomas W. Sorrells, Asst. Atty. Gen., for appellee.
JAMES H. FAULKNER, Retired Justice.
Derrick LeKeith O'Neal was indicted for the offense of possession of cocaine, in violation of § 13A-12-212(a)(1), Code of Alabama 1975. The jury found O'Neal guilty as charged in the indictment; he was sentenced to seven years in the state penitentiary, and an application for probation was entered. At the probation hearing, the
Page 463
trial court ordered O'Neal to attend the Disciplinary Rehabilitation Program ("Boot Camp") for a period of up to 180 days. Subsequent to the probation hearing, the trial court discovered that O'Neal had an outstanding warrant on a new charge, and the court set aside its order and denied probation. Three issues are raised on appeal.O'Neal contends that the trial court erred in refusing to give the jury his requested written charges numbered 1, 2, 3, 4, 6, 7, 9, 10, and 13.
Charges 1, 6, 7, 10, and 13 dealt with constructive possession and exclusive possession of premises. A careful review of the record reveals that these charges were due to be refused because they were not based upon the evidence and would therefore be confusing and misleading to the jury.
Officer Donna Long of the City of Opelika Police Department testified that she observed O'Neal standing with Richard Lewis Jordan at the corner of South Fourth Street and Avenue C. According to Long, as she drove up and stopped her car, she saw an object in O'Neal's hand and she saw O'Neal walk away from the corner, drop the object from his hand onto a prepared concrete foundation, and then return to the corner. Long testified that she exited her vehicle and retrieved the object O'Neal had dropped. Once Long had examined the object, she arrested O'Neal for possession of cocaine. Although Long testified that she could not recognize the object as being cocaine when she first saw the object in O'Neal's hand, she testified without equivocation that the object she retrieved from the concrete foundation was the same object that she observed in O'Neal's hand. Taylor Noggle, a forensic scientist with the Alabama Department of Forensic Sciences, testified that the object that he received in a sealed plastic bag from Officer Long was crack cocaine.
Because the State's evidence, if believed, established actual possession of cocaine on a public street, any charges dealing with constructive possession or exclusive possession of premises would be abstract, would not be predicated on the evidence, and would be confusing and misleading to the jury. The refusal to give requested charges is not improper where those charges are confusing and misleading, and are not based on the evidence. Bogan v. State, 529 So.2d 1029 (Ala.Cr.App.1988). The trial court therefore properly refused charges 1, 6, 7, 10, and 13 on this ground.
Charges 2, 3, and 4 dealt with convicting O'Neal of possession of cocaine based upon a mere suspicion, a fear, or a possibility. Although the facts in this case do not indicate the possibility of a conviction based on speculation and suspicion, these refused charges were substantially covered in the court's oral charge as well as in O'Neal's requested charges 5 and 8, which instructed the jury that they must be convinced that circumstantial evidence must exclude any reasonable inference consistent with O'Neal's innocence. Hence, the trial court properly refused charges 2, 3, and 4 because those charges were substantially covered in the court's oral charge and in O'Neal's charges 5 and 8, which were read to the jury.
Charge 9 also dealt with verdicts founded upon speculation and included a statement...
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