Nodd v. State

• Citation: 549 So.2d 139
• Decision Date: 16 June 1989
• Docket Number: 1 Div. 788
• Parties: Tony NODD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 139

549 So.2d 139

Tony NODD v. STATE.

1 Div. 788.

Court of Criminal Appeals of Alabama.

June 16, 1989.

T. Jefferson Deen III of Clark, Deen & Copeland, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Tony Nodd was convicted for the unlawful possession of cocaine in violation of Ala.Code 1975, § 20-2-70. The sentence of five years' imprisonment was split, with the defendant to serve six months in a jail-like institution and the remainder on formal probation. Three issues are raised by Nodd on this appeal from that conviction.

I

Nodd maintains that reversible error was committed when the trial judge ordered a severance of his case from that of a co-defendant on the day of trial.

In May of 1987, Nodd and his companion, Kennedy Charles Osborn, were arrested for a violation of Alabama's Controlled Substances Act. They were separately indicted. On May 6, 1988, the trial judge granted the State's motion and consolidated the two cases. Trial began on May 18, 1988. Before the jury was selected, the trial judge severed the two cases, over Nodd's objection, based on the fact that co-defendant Osborn did not appear for trial. The trial continued and Nodd was convicted. Then, Osborn pleaded guilty in June of 1988.

A trial court should order a severance of defendants or grant some other relief whenever it finds that "a defendant or the state may be prejudiced to the extent that a fair trial cannot be afforded." Rule 15.4(d), A.R.Cr.P.Temp.

"[A] severance is not authorized by the rule in the absence of a finding of prejudice to a defendant." Ex parte Speaks, 494 So.2d 118, 119 (Ala.1986). Although the trial judge did not make a specific "finding of prejudice to a defendant" before granting the severance, such a finding is implicit in the court's statement, "[T]he co-defendant did not appear and based upon that the Court has severed him in that he did not appear." The record indicates that the absence of the co-defendant was neither excused nor anticipated.

Rule 15.4(d) authorizes a severance if the trial court finds that any defendant will be prejudiced. The prejudice to co-defendant Osborn from a trial in his absence is clear and obvious. For this reason, we find no error in the granting of the severance. See United States v. Lochan, 674 F.2d 960, 967-68 (1st Cir.1982); Petty v. State, 548 So.2d 632 (Ala.Cr.App.1989).

II

The trial court properly denied Nodd's motion to suppress.

On the afternoon of May 2, 1987, Prichard Police Officer Charles Hall was on his way to work. While putting gasoline in his private vehicle, he noticed two males sitting in the back seat of an automobile parked in front of the station. Officer Hall observed these two men passing a handrolled cigarette between them and smoking it. He testified that based on his experience as a narcotics officer he suspected the men were smoking marijuana.

Two other males came from inside the station and got into the vehicle which was then driven away. Officer Hall followed and, on his radio, called for backup to stop the vehicle for a possible drug violation.

A marked police unit stopped the vehicle in which the defendant was riding within a short distance from the station. Officer Hall walked up to the vehicle from the passenger side and observed a small paper bag between the front bucket seats. Protruding from the paper bag was a clear plastic bag which contained a green leafy material, which Officer Hall recognized as marijuana. Officer Hall could see this plant material from outside the vehicle "without even leaning over."

Officer Hall ordered the four occupants out of the car and seized the paper bag containing the plastic bag. Cocaine was found in the same bag with the marijuana. When Officer Hall seized the bag, all four men, including the defendant, spontaneously denied ownership and said, "It ain't mine, I don't know where it came from." All four men were placed under arrest for felony possession of cocaine and marijuana.

After the defendant's arrest, Officer David Bruhl searched the defendant before placing him in a patrol car. In frisking the defendant, Officer Bruhl discovered a plastic bag containing 29 squares of foil containing cocaine inside the waistband of the defendant's trousers.

Officer Hall's personal observation of the two men sharing and smoking a handrolled cigarette provided the officer with the reasonable suspicion necessary to justify an investigatory stop of the vehicle in which the men were sitting. Ex parte Yeung, 489 So.2d 1106 (Ala.1986). Cf. State v. Betterton, 527 So.2d 743, 745 (Ala.Cr.App.1986), affirmed, Ex parte Betterton, 527 So.2d 747 (Ala.1988).

Here, the officer's articulated observations provided the reasonable suspicion of criminal activity necessary to justify the short investigatory stop of the automobile under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Hawkins, 811 F.2d 210, 215 (3rd Cir.) cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987). "Although an experienced officer may not base reasonable suspicion merely on innocent activity, police may infer criminal activity from conduct which seems innocuous to an untrained person." Project: Seventeen Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987, 76 Geo.L.Rev. 562-63 (1988).

Here, the vehicle was lawfully stopped and the officer had a legitimate reason for being present when he observed what appeared to be marijuana inside the vehicle. The seizure of the marijuana was justified under the plain view exception to the requirement of a search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Shipman v. State, 291 Ala. 484, 282 So.2d 700 (1973); W. LaFave, 3 Search and Seizure § 7.5(a) (2d ed. 1987).

After the defendant was stopped and the marijuana had been observed inside the vehicle, the officer's reasonable suspicion to investigate ripened into probable cause to arrest. The defendant's arrest was proper because it was based on probable cause. The search of the defendant and the seizure of the cocaine from his person were proper because it was incident to his lawful arrest. State v. Calhoun, 502 So.2d 808, 815 (Ala.1986); Ex parte Hurn, 92 Ala. 102, 9 So. 515 (1891).

III

The defendant contends that the trial court's voir dire questioning of the jury venire was insufficient and that the court erred by refusing to allow defense counsel to question the venire.

The record shows that the jury venire was sworn and qualified. The trial judge questioned the venire and ascertained that no venire person had been a member of the grand jury that returned the indictment against the defendant; that no member was related to or acquainted with the defendant; that no member was related to or had been represented by defense counsel; that no member was related to the prosecutor or any other member of the district attorney's office; that no member had any knowledge of the facts of the case; that no member was in law enforcement; that no member had a fixed opinion of the defendant's guilt or innocence; and that no venire person knew of any reason why he or she could not serve as a fair and impartial juror in this case. After each member stood for identification, the venire was allowed a short recess.

During that recess, the following exchange occurred between defense counsel and the trial judge:

"MR. DEEN: For the record, I do not feel qualified to strike a jury of twelve on behalf of my client and provide him effective assistance of counsel due to limited questions the Court asked in voir dire and in not allowing the attorneys to ask questions.

"THE COURT: What would you want to ask?

"MR. DEEN: Well, you know it is the practice now in this Circuit by our presiding judge that attorneys are not allowed to have jury lists, the master lists, at all, so all we get is the list of thirty when we come into trial. And to sit down--Mr. Nodd and I have sat down and are just now looking at these people. I would have liked to ask if anybody had had any prior jury service, the type of trials they sat on, was it criminal or civil, whether or not they decided for the defendant or the State in a criminal trial or the plaintiff or the defense in a civil case.

"I'd like to know if members of their family who are in law enforcement, either now or in the past, or if they have any close personal friends that are in law enforcement. I would like to ask them if they would tend to believe a police officer over another witness merely because of the fact that the person is a policeman. I would like to know if they understand that the burden of proof in a criminal trial is different than in a civil case in that the defendant has to be convicted beyond a reasonable doubt and if they have any problems with that, and do they have any problems with the presumption of innocence.

"Since this case involves drugs, I would like to ask them the fact that it involves drugs, would that mean that they are going to vote for the defendant to be found guilty no matter what, just because drugs are involved and no matter what the other evidence would be.

"Those were some of the questions I wanted to get into with these prospective jurors.

"THE COURT: In this case, I didn't deem it necessary for any voir dire to be conducted, it's a simple possession charge. Why don't I--so I will note your exception and your objection."

After it was determined that each party would have six strikes, defense counsel raised further objection, noting that, contrary to the past practice of the trial court, in this case no inquiry had been made to determine whether any member of the venire knew any witness for the State. Defense counsel complained that he was "really sort of just striking in the dark." The trial judge advised counsel, "Just do the best you can, I guess, or I'll have to exercise them ...