Presley v. State

• Decision Date: 12 October 1990
• Citation: 587 So.2d 1016
• Parties: Earl PRESLEY v. STATE. CR 89-388.
• Court: Alabama Court of Criminal Appeals

Page 1016

587 So.2d 1016

Earl PRESLEY v. STATE.

CR 89-388.

Court of Criminal Appeals of Alabama.

Oct. 12, 1990.

Rehearing Denied Nov. 30, 1990.

Paul M. Harden and Anthony J. Bishop, Evergreen, and Hugh Rozelle, Atmore, for appellant.

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

BOWEN, Judge.

Earl Presley was convicted for trafficking in marijuana, was fined $25,000, and was sentenced to life imprisonment without parole as a habitual felony offender. He raises four issues on this appeal from that conviction.

I.

The defendant argues that the evidence was insufficient to show that he was in possession of more than 2.2 pounds of marijuana as required for a conviction for trafficking under Ala.Code 1975, § 20-2-80 (now § 13A-12-231(1)).

"This Court has recently held that in order to convict a person for trafficking in marijuana pursuant to Ala.Code 1975, § 20-2-80, the State has the burden of proving that the defendant possessed in excess of 2.2 pounds of the drug. Ex parte Sellers, 519 So.2d 1292 (Ala.1987); see also Borden v. State, 523 So.2d 508 (Ala.Crim.App.1987); Mulhern v. State, 494 So.2d 787 (Ala.Crim.App.1986).

"....

"The State asserts that it met its burden of proving that Bohannon possessed in excess of 2.2 pounds of marijuana and that, pursuant to Dickerson v. State, 414 So.2d 998 (Ala.Crim.App.1982), the burden shifted to the defendant to prove that some portion of the total weight was excluded by the statute.... "Dickerson, supra, held:

" '[T]he burden is upon the appellant to establish and bring himself within any exclusion which is found not in the enacting clause defining a crime but rather in a subsequent clause or statute. Specifically, he must establish that the mari[j]uana seized from his residence contained excludable matter falling within the definition of such under § 20-2-2(15).'

"Dickerson, 414 So.2d at 1002 (cites omitted). But, in order for the burden to shift, the State must first prove that the defendant possessed in excess of 2.2 pounds of marijuana, as the term is defined in § 20-2-2(15)."

Ex parte Bohannon, 564 So.2d 854, 857-58 (Ala.1988) (emphasis in original). See also Ex parte Sellers, 519 So.2d 1292 (Ala.1987).

"When a defendant is being prosecuted for trafficking in marijuana, pursuant to § 20-2-80, the burden is clearly on the state to prove that he was in possession of more than 2.2 pounds of marijuana, as that term is defined above [§ 20-2-2(15) ]. Mulhern v. State, 494 So.2d 787 (Ala.Cr.App.1986). However, once the state has established the existence of the requisite amount of marijuana, the burden is then on the defendant, if he seeks to contest the validity of that weight, to show that there was matter contained in the material weighed which should have been excluded pursuant to § 20-2-2(15)."

Day v. State, 539 So.2d 410, 412 (Ala.Cr.App.1988).

In this case, on direct examination, forensic drug chemist Deborah Sennett testified that she "looked at all the material" contained in State's exhibit 1, that "[t]he material was marijuana," and that "[i]t weighed 2080 grams or 73.37 ounces or 4.59 pounds." On cross-examination, she testified that a "[g]ross analysis was performed on the entire contents of the bag. A small portion of the plant material was removed for the chemical test." A "gross analysis" means she "dumped the contents out and examined the entire contents for consistency."

Ms. Sennett stated that the bag contained "a reasonable amount of seeds," but did not "recall there being a lot of twigs." The weight she testified to included everything that was in the bag, including "seeds and stalks and the twigs." She did not determine whether the seeds were fertile or infertile.

However, Ms. Sennett testified that the 4.59 pounds "was the weight of the marijuana." She did not testify that the 4.59 pounds was the weight of the green plant material which contained marijuana. Compare Mulhern v. State, 494 So.2d 787, 788 (Ala.Cr.App.1986). On redirect, she testified that the bag contained leaves and seeds and did not contain any part of the central stalk of the marijuana plant. She again testified that the material in the bag was marijuana. See Day, 539 So.2d at 412-13.

At the close of the State's case-in-chief, the defendant made a motion for a judgment of acquittal due to the State's failure to prove possession of more than 2.2 pounds of marijuana. During argument of that issue, the following occurred.

"MR. GODWIN [district attorney]: We specifically excluded the mature stalk in her testimony. All we are talking about is a few seeds that Mr. Harden [defense counsel] has reference to. We've shown that's all part of marijuana. That was her testimony. Everything in that bag was marijuana.

"THE COURT: She did say that.... Well, as I understood Ms. Sennett's testimony, she said everything in the bag was marijuana and the Code tells us what marijuana is.... She was not even asked by the Defendant whether or not those seeds were capable of germination...."

With the exception of the mention of seeds in this case, Ms. Sennett's testimony in this case is substantially similar to her testimony in Ex parte McCall, 541 So.2d 1075, 1077 (Ala.1989), which, with regard to the weight of the marijuana, was found sufficient to support a conviction for trafficking "She testified that after she weighed the material, she did a gross examination of all of the material and a chemical analysis of a portion of the material. She testified that the chemical analysis showed that the portion of the material that she tested was marijuana. She further testified that she determined from the gross examination that the remainder of the material was also marijuana."

McCall, 541 So.2d at 1077.

Marijuana, or "marihuana," is defined in Ala.Code 1975, § 20-2-2(15), as:

"All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination."

In this case, there was no testimony that any of the seeds were sterilized. "Under § 20-2-2(15), seeds are not excluded from the definition of marijuana unless they are sterilized. The burden of establishing such is upon appellant. Having failed to do so, we find that inclusion of the seeds for weighing purposes was not error." Dickerson v. State, 414 So.2d 998, 1003 (Ala.Cr.App.1982) (citation omitted).

Although some of defense counsel's questions to Ms. Sennett referred to "twigs," our consideration of all of the testimony leads to the conclusion that the "bag" contained stems but not stalks. In conjunction with Ms. Sennett's testimony, there was testimony from Atmore police officer Charles Ellaird that he and detective Darrel Ledkins "stripped" the plant material off the "stalks" and "branches" and placed what they had stripped off in a plastic garbage bag, State's exhibit 1. Detective Ledkins testified that they "[s]tripped the leaves off of the stalks" and put the "leaves" in a garbage bag.

We find that the State presented prima facie evidence that the defendant was in possession of more than 2.2 pounds of marijuana and that the defendant failed to go forward and show that State's exhibit 1 contained any excludable material. The defendant's motion for a judgment of acquittal was properly denied. Wright v. State, 570 So.2d 872 (Ala.Cr.App.1990); Day, 539 So.2d at 412-13. See also Higdon v. State, 527 So.2d 1352, 1354 (Ala.Cr.App.1988) (the forensic lab analyst testified that there were some seeds in the bag but that they represented only an "insignificant" amount of the material).

II.

The trial court did not abuse its discretion in preventing defense counsel from cross-examining the state chemist on her knowledge of what parts of the marijuana plant are illegal under the Controlled Substances Act of the Code of Alabama. "A witness, be he expert or lay, cannot give his opinion when such constitutes a legal conclusion or the application of a legal definition." C. Gamble, McElroy's Alabama Evidence § 128.07 (3d ed. 1977), and cases cited therein. " 'It may be laid down as a general rule that a witness is never permitted to give his opinion on a question of law or upon matters which involve a question of law. This rule is applicable to both expert and non expert witnesses.' ... The reason for such rule is that conclusions of law are exclusively for the courts." Fiorella v. City of Birmingham, 35 Ala.App. 384, 388-89, 48 So.2d 761, 766, cert. denied, 254 Ala. 515, 48 So.2d 768 (1950), cert. denied, 340 U.S. 942, 71 S.Ct. 506, 95 L.Ed. 680 (1951).

Defense counsel did not attempt to cross-examine Ms. Sennett on which parts of the marijuana plant contain tetrahydrocannabinol. See Dickerson, 414 So.2d at 1002 (defining "cannabis"). Counsel was not prohibited from questioning the witness about the specific contents of the garbage bag (such as mature stalks, fibers produced from the stalks, cake made from the seeds or sterilized seed) which are specifically excluded from the definition of marijuana by statute. The trial court properly sustained the State's objections to defense counsel's attempts to elicit Ms. Sennett's legal opinions and knowledge of the law.

III.

At the conclusion of the court's oral instructions, the jury was given a recess, and defense counsel made his objections to the court's oral charge. When the jury returned to the courtroom, the trial judge instructed the jury pursuant to defense counsel's request. While the judge stated that it had been "pointed out" to him...