Page v. State, 4 Div. 334

• Decision Date: 17 February 1976
• Docket Number: 4 Div. 334
• Citation: 57 Ala.App. 265,327 So.2d 760
• Parties: Johnny PAGE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 760

327 So.2d 760

57 Ala.App. 265

Johnny PAGE v. STATE.

4 Div. 334.

Court of Criminal Appeals of Alabama.

Feb. 17, 1976.

Cada M. Carter, Dothan, for appellant.

William J. Baxley, Atty. Gen., and Jack Merrill Curtis, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of possession of heroin. The court fixed his punishment at five years imprisonment in the penitentiary and sentenced him accordingly. By Code of Alabama 1940 Recompiled, 1973 Cumulative Supplement, Tit. 22, § 258(29)(c), heroin is a controlled substance, the possession of which is proscribed and made punishable by imprisonment for not less than two and not more than fifteen years imprisonment, by Section 258(47) of said Title 22.

Appellant does not contend, and we see no basis for a contention, that the evidence was insufficient to support the verdict of the jury and the resultant judgment. We see no necessity, therefore, to narrate the evidence, and we limit our discussion of the testimony to portions thereof pertinent to the questions under consideration herein.

Three officers of the Alabama ABC Board and one officer of the Dothan Police Department, acting on an informer's tip, spotted appellant in Dothan and identified themselves to appellant, who gave his consent to a search of his motor vehicle and his person. No contraband was found in his vehicle, but two 'hits' of heroin were found in an inside pocket of his coat. At the time, he denied knowledge of the presence of the heroin in his coat. He did not testify as a witness in the case. However, several witnesses, including his wife, testified in his behalf to the effect that they had never known of appellant's pushing or using prohibited drugs and that some time before he was arrested his coat or jacket in which the heroin was found had been borrowed by a mysterious person who went by the name of 'Clarence.' In general, the testimony of most of them was to the effect that Clarence was a 'pusher' and user of prohibited drugs, including 'hard stuff.'

Defendant filed a motion for new trial which included grounds that since the conviction 'new evidence has been discovered concerning one Clarence Parker, who is working in Dothan, Alabama, in an undercover capacity under the direction of agents for the Drug Information Administration . . .'

After several continuances of the motion, there was a hearing thereon in which there was testimony, including that of defendant's appointed attorney on the trial of the case, to the effect that the two Clarences were the same, and that defendant and his attorney did not have knowledge of the fact that Clarence was an undercover agent until he 'cross-examined him in a Federal trial.' He said he 'cross-examined him in Johnny Page's Federal trial' and that Clarence admitted in the federal court that he used the jacket for several days and had borrowed it from Johnny.

Appellant insisted (1) that the trial court should have granted the motion for a new trial on the ground of newly discovered evidence and (2) that the trial court should have granted defendant's motion for a mistrial that was made on the ground that a state witness had made some statements to other witnesses sequestered in the witness room, who afterwards testified for the State.

The evidence on the motion for new trial was presented ore tenus. We would prefer less mystery as to Clarence Parker that exists even to the present time, which probably could have been clarified to some extent at least by testimony or affidavit from him on the hearing of the motion, but this is a matter beyond our control. To be weighed against whatever evidence there was that tended to support the contention of the defense, though not supported by any evidence from any testimony of defendant himself, that he had no knowledge of...