Owens v. State, 4 Div. 254

• Decision Date: 17 July 1984
• Docket Number: 4 Div. 254
• Parties: Robert Lee OWENS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 305

460 So.2d 305

Robert Lee OWENS v. STATE.

4 Div. 254.

Court of Criminal Appeals of Alabama.

July 17, 1984.

Rehearing Denied Aug. 14, 1984.

Certiorari Denied Nov. 30, 1984

Alabama Supreme Court 83-1339.

Richard L. Osborne, York, and Jo Celeste Pettway, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found Robert Lee Owens guilty under an indictment charging him with the unlawful possession of cocaine, "a controlled substance, contrary to and in violation of § 20-2-70 of the Code of Alabama 1975, as amended." The indictment was returned September 23, 1983; on October 5, 1983, he appeared with his retained attorney and on arraignment entered a plea of not guilty. On October 11, 1983, said attorney filed a motion captioned, "Motion for Withdrawal as Counsel and Continuance," alleging in pertinent part: (1) that the attorney had been retained as counsel on October 5, 1983, (2) that defendant had expressed dissatisfaction with the assistance rendered by counsel for defendant, (3) that defendant had failed to communicate with counsel concerning certain matters related to defendant's case, and (4) that said counsel could not adequately provide a defense in this case without the cooperation of defendant.

The District Attorney filed a document on October 11, 1983, captioned "Answer to Defendant's Motion for a Continuance," stating in pertinent part:

"1. The State has no objection to defendant's counsel being permitted to withdraw for the reasons stated in the said motion; but on the contrary

"2. The State strongly objects to defendant being allowed, by his own misconduct and uncooperative attitude toward counsel, to cause his case to be continued for the term.

"The State, therefore, prays that defendant be required to appear before the Court with new counsel, and be further required to stand ready for trial by Thursday, October 20, 1983, the date on which his said case is presently scheduled."

When the case was called for trial on October 26, 1983, defendant was there with "Richard L. Osborne, Esq., Attorney at Law, York, Alabama, appearing in behalf of the defendant." Immediately upon call of the case, the State announced ready, and the following occurred:

"THE COURT: Is the defendant ready?

"MR. OSBORNE: Your Honor, the defendant is ready providing that the witnesses that the defendant has subpoenaed are present.

"THE COURT: Have you checked to see if they are present?

"MR. OSBORNE: He's not in the courtroom, Your Honor, Culver Murry.

"THE COURT: I don't show any witnesses here, at least in the file, about being subpoenaed. Did you file a request with the Clerk to have some witnesses subpoenaed?

"MR. OSBORNE: I called, Your Honor, because of the distance that I had to travel, and she verbally took them down.

"THE COURT CLERK: I will have to check with the office to see. Where was this subpoena served?

"MR. OSBORNE: This one is Fort Gordon, Georgia.

"THE COURT CLERK: Fort Gordon?

"MR. OSBORNE: Yes, sir.

"THE COURT: The Clerk wouldn't have any authority to order somebody to appear from Fort Gordon, Georgia.

"MR. OSBORNE: Pardon me, sir?

"THE COURT: The Clerk would not have any authority to order somebody to appear from Fort Gordon, Georgia, because it would be outside his jurisdiction or outside the State.

"MR. OSBORNE: We also have some materials requested, too, a subpoena duces tecum, but it was also for Georgia.

"THE COURT: Do you have a copy of that motion? I don't have it here in the file.

"(Mr. Osborne handed a document to the Court.)

"THE COURT: Thank you.

"MR. OSBORNE: Two of the persons on that list did get their subpoenas.

"THE COURT CLERK: Do you remember which two?

"MR. OSBORNE: Taylor and Atkins.

"THE COURT: While the Clerk is checking on the subpoenas, subject to that, are you ready to proceed?

"MR. OSBORNE: Subject to the witness being present, yes, sir.

"THE COURT: While he's checking on that let me--I'll go ahead, if there's not any objection, and start to qualify the jurors and then I'll deal with the matters about the subpoenas in just a few minutes, as soon as I can get some more information from the Clerk's office, if his office has any records or any returns on those subpoenas."

Soon after the proceedings quoted above, the names on the jury panel from which the jury was to be selected in the instant case were called and "each juror stood as his or her name was called." Thereupon, the following occurred:

"THE COURT CLERK: The subpoenas were mailed to Fort Gordon last Thursday. We do not have a return.

"THE COURT: What about the others?

"THE COURT CLERK: Those two were served.

"THE COURT: Are they here?

"THE COURT CLERK: I don't know if they are here or not. We don't have a return from those counties.

"(A brief off-the-record discussion was had among the court, the court clerk, and Mr. Osborne.)

"MR. OSBORNE: Your Honor, may I make a statement about the other witness that we have subpoenaed, Culver Murry?

"THE COURT: Wait just one second. Do you want this on the record or off?

"MR. OSBORNE: I think off.

"(A brief off-the-record discussion was had between the Court and Mr. Osborne.)

"THE COURT: Ladies and gentlemen, let me go ahead and qualify you at this time in regard to specific questions of this case and regarding the special qualifications to be jurors in this case. The oath that you have taken previously regarding qualification of jurors will still apply to the question that I must ask you now.

"(A jury was duly qualified by voir dire examination by the Court, selected by striking by the State and counsel for the defendant, and placed in the jury box.)

"THE COURT: Ladies and gentlemen, by procedural laws of Alabama there are certain things that are required to be done outside your presence. I have certain matters in this case that must be attended to that have to be done by law outside your presence. So, being aware of that and it being close to the noontime hour, I would propose to go ahead and let you folks depart now and get your noontime meal and ask you to come back this afternoon; and in the meantime I will be going ahead and dealing with the matters that have to be done with you folks not here."

The trial judge then continued his instructions to the jury for about three paragraphs, and then the jury left the courtroom, and soon thereafter the court commenced the hearing of defendant's motion to suppress as evidence a tape recording that had been obtained, without the knowledge or permission of defendant, of a lengthy transaction and profuse conversations between defendant and Culver Murry, an acknowledged informant, and others, which was summarized by counsel for the State in part as follows:

"... [A]n informant was wired with a microphone by the Ozark, Alabama, Police Department. He was sent to a location where the defendant was located and he, with the microphone taped to his body, began transmitting the conversations between himself and the defendant, which were monitored by and recorded by Detective Grant at the Ozark Police Department.

"... [D]uring the recording of these events, ... the defendant and the informant left in an automobile and traveled from Dale County, Alabama, to Columbus, Georgia, with their vehicle under constant surveillance by police vehicles, including Detective Grant and Investigator Johnny Griffin, of the ABI."

The prosecuting attorney continued with the following:

"We expect the evidence to show that there was conversation about a cocaine transaction to be engaged in between the informant and the defendant wherein the defendant agreed to procure cocaine for the informant for a sum of money, which was provided by the Ozark Police Department and the ABI. We expect the evidence to show that the defendant and the informant had their discussion about where the cocaine was to be procured, namely, in Columbus, Georgia; and that the transaction was monitored and observed by Ozark police officers, Dale County Sheriff's officers, ABI officers and GBI officers and Columbus police officers.

"After that transaction took place, we expect the evidence to show that the defendant and the informant proceeded in the same automobile back into Phenix City, Alabama, at which time they were stopped by the officers who had been following them in a police vehicle and had been monitoring the broadcast conversation and recording it. And we expect the evidence to show that the recording that we have was made contemporaneously with that monitored--with those monitored conversations. We expect the evidence to show that the substance was seized at the time of the stop on their return to Alabama."

Soon after the statement quoted above by the prosecuting attorney, the trial court indicated that it was ready to proceed with the hearing on defendant's motion to suppress the proposed evidence and the following then occurred:

"THE COURT: Mr. Osborne, are you ready to proceed? Is there anything further you want to put in regard to your motion?

"MR. OSBORNE: Are we going to take up the motion for continuance after the hearing?

"THE COURT: What motion for continuance do you have at this point?

"MR. OSBORNE: I don't have it written down.

"THE COURT: All right. Go ahead and recite it for the record.

"MR. OSBORNE: It's not a written motion because I didn't--

"THE COURT: Go ahead.

"MR. OSBORNE: Due to the fact that I just came into this case a couple of weeks ago, and at that time the DA's office ... informed me that the case would be tried probably on the nineteenth, and based upon several conversations with him it was determined that we would at least have two days' notice before the trial itself. Based upon this, I was instructed to call him back the day before to make sure the date of the trial. I did so, and he informed me on that date--which probably was the nineteenth--that the trial would be held on the twenty-sixth. That was in the afternoon.

"The very...