Patton v. State
| Decision Date | 05 February 1980 |
| Docket Number | 6 Div. 47 |
| Citation | 384 So.2d 19 |
| Parties | Aaron Jake PATTON v. STATE |
| Court | Alabama Court of Criminal Appeals |
William B. Lloyd of Lloyd, Ennis & Lloyd, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.
The appellant was charged with unlawfully selling, furnishing, or giving away heroin, in violation of the Alabama Uniform Controlled Substances Act. After a trial by jury, he was found guilty and sentenced to fifteen years imprisonment. Notice of appeal was given, and a motion for a new trial was made and subsequently denied.
The State's evidence showed that Deputy James R. Donald, an undercover agent with the United Narcotics Detail Operation, met Deputy Gary Harris on July 21, 1978, and was told to go to 621 Yellow Bird Lane, Birmingham, Alabama, where Donald was to attempt to make a drug purchase. Donald was given one-hundred and twenty-five dollars to be used to buy the drug. According to Donald, when he arrived at the address, the defendant identified by Donald in court admitted him into the house and, subsequently, sold him one teaspoonful of heroin, which the appellant wrapped in aluminum foil. Donald testified that he paid the defendant one-hundred and twenty-five dollars for the heroin.
Donald again met Harris, and the substance in the aluminum foil was turned over to him. Donald stated that the substance in the aluminum foil was placed in an evidence envelope and initialed by both of the officers.
During cross-examination, Donald acknowledged that he did not see the appellant's wife. The witness did not recall seeing any children. Further, he said that, the appellant never left the room while the sale was being made. He merely took some aluminum foil from a shelf over the washing machine and, using a spoon, measured out an amount of heroin, which he then wrapped and gave to Donald. Donald stated that he was sure he had made no buys that day other than the one he had made from the appellant.
Jefferson County Deputy Gary Harris, who, on July 21, 1978, was employed with United Narcotics Detail, stated that he instructed Donald to attempt to purchase heroin from the appellant. According to Harris, he followed Donald to 621 Yellow Bird Lane, where he arrived at approximately 6:12 P.M. Harris said that he drove by the residence and saw Donald go to the door. Further, Harris testified that he did not see Donald walk out of the house, but did see him drive away from the residence in his car. Harris followed Donald back to the parking lot at 6600 Belview Drive. According to Harris, Donald at that time gave the witness a small tin foil packet. He opened the packet and saw that it contained a "light brown powdery substance." Harris said that he placed the packet in a small evidence envelope and sealed it. Further, he testified that he and Donald initialed the seams of the evidence envelope and that it was placed in the trunk of Harris' car.
Harris stated that the envelope was kept in the trunk of his car from Friday, July 21, 1978, until Monday, July 24, 1978, when the evidence envelope was turned over to the State Toxicologist.
During cross-examination, Harris acknowledged that he did not work during the days when the heroin remained in the trunk of his car. Further, he did not remember using the car between Friday evening, July 21, 1978, and Monday morning, July 24, 1978. Also, he said that the car remained parked in the driveway of his residence and, as far as he knew, he had the only key to the trunk of the car.
Jerrell Wayne Burrow was employed by the Birmingham Division of the Alabama Department of Forensic Sciences, which was formerly known as the Department of Toxicology. He testified that on July 24, 1978, he received, from Deputy Harris, an envelope with an aluminum foil packet inside. According to Burrow, the packet contained 1.099 grams of light brown powder, which an analysis revealed was heroin. During the trial, he identified the envelope with the packet, marked as State's Exhibit No. 1.
Deputy Harris was recalled to the stand, and he also identified the envelope marked as State's Exhibit No. 1. He testified that he recognized the envelope and that his initials appeared on it.
Deputy Donald was also recalled to the stand, and he identified State's Exhibit No. 1. He testified that he recognized the envelope and indicated that his initials appeared on the envelope.
At the end of Donald's testimony, objection was made to State's Exhibit No. 1, on the ground that the chain of evidence was not "connected." The objection was overruled, and the State rested its case. Appellant, at that time, moved to exclude the evidence on the ground that a prima facie case was not made, but this motion was also overruled.
The appellant did not take the stand, but his wife, Mary Patton, was called as a witness. She testified that she lived at 621 Yellow Bird Lane in Hueytown, Jefferson County, Alabama, with the appellant and their three children. The witness stated that she usually arrived home from work about 5:00 P.M. She did not recall anyone coming to the house on the evening of July 21, 1978. Further, she stated that she had never seen Officer Donald before and had not seen him at her house on the day in question. According to Mrs. Patton, her children were in the den on the night of July 21, 1978. She stated that the family owned a vicious dog which guarded the house by biting anyone who knocked on the door. Further, she testified that the small room containing the washing machine and dryer did not have any shelves and, to her knowledge, her husband did not keep any aluminum foil in that room.
Mrs. Patton stated that she had not observed any powder of any type which was contained in State's Exhibit No. 1.
At the end of Mrs. Patton's testimony, the defense rested. Subsequently, closing arguments were presented by both parties.
The appellant contends that the chain of custody of the package of heroin was not sufficiently connected to justify its admission into evidence. He maintains that the depositing of the package of heroin over the weekend in the trunk of the automobile owned by the law enforcement agency did not provide sufficient security to assure that no one tampered with the evidence. Because Deputy Harris was not certain whether he had the only keys to the automobile, the appellant argues it was reasonable to assume that others in the law enforcement agency may have had access to a set of keys to the vehicle driven by Harris. Also, he argues that a conflict in testimony between the amount of heroin measured at the time of the sale and the amount ultimately examined by the toxicologist "increases the likelihood of unauthorized excess."
In support of this contention, the appellant has cited Motes v. State, Ala.Cr.App., 356 So.2d 712, a case in which this court upheld the admissibility of evidence which had previously been locked in an automobile trunk. However, in Motes, the evidence had been placed in a lock-box inside the locked automobile trunk, and the only person having access to both keys was one police officer. In the present case, testimony showed that Harris and Donald had sealed the packet of heroin in an evidence envelope, which they initialed and locked in the trunk of Harris' car. No evidence that the envelope had been tampered with was presented, nor was there presented any evidence that any person other than Harris had access to the car. In fact, Officer Harris testified that, "as far as (he) knew" he had the only set of keys to the automobile, which remained in his driveway over the weekend. Nothing which would indicate that continuity of possession had been disturbed was shown.
As was shown in Henry v. State, 57 Ala.App. 383, 328 So.2d 634, the fact that others may have had keys to a cabinet containing evidence did not render insufficient the chain of custody to establish a jury question "as to the accuracy of the exhibit's identification." As in Henry, the testimony in the present case contained nothing to indicate that "the continuity of the possession has been disturbed."
The possession and custody of the package of heroin by Harris were sufficiently established. No missing link in the chain of identification due to the fact that the heroin had been locked in Harris' car from Friday evening until Monday morning was shown. The fact that the evidence, a packet of heroin, was placed in the trunk for some two days would not disturb the continuity of possession without some evidence of an intervening force.
In Mullins v. State, 56 Ala.App. 460, 323 So.2d 109, testimony showed that, on ...
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