Qualls v. State

• Decision Date: 29 September 1989
• Docket Number: 4 Div. 372
• Citation: Qualls v. State, 555 So.2d 1158 (Ala. Crim. App. 1989)
• Parties: Susan Simmons QUALLS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1158

555 So.2d 1158

Susan Simmons QUALLS v.STATE.

4 Div. 372.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

Rehearing Denied Nov. 17, 1989.

Certiorari Denied Jan. 19, 1990

Alabama Supreme Court 89-348.

Grady O. Lanier III, Andalusia, and Wesley L. Laird, Opp, for appellant.

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

TYSON, Judge.

Susan Simmons Qualls was indicted for the unlawful distribution of controlled substances, in violation of § 13A-12-211,Code of Alabama 1975(Supp.1988).The appellant was found "guilty as charged in the indictment."She was sentenced to seven years' imprisonment in the penitentiary and fined $1000.The appellant was also ordered to pay $25 to the Victim's Compensation Fund.

Claude Cosey testified that he met the appellant while he was working as an undercover narcotics agent with the Alabama Alcoholic Beverage Control Board in March of 1988.He stated that he saw the appellant every weekend until May 21, 1988.At 9:45 p.m. that evening, the appellant approached Cosey as he was sitting in his car in the parking lot of the Tom Thumb convenience store in Florala, Alabama.The appellant asked Cosey if he wanted some marijuana because she knew where she could get some "killer pot."(R. 60).Cosey said he would take a bag, and the appellant told him the price was $30 a bag.Cosey gave her $30, and the appellant left the parking lot in her black Oldsmobile Cutlass automobile, tag number 23BM 170.When Cosey and the appellant first met, the appellant told him that she had just bought the car from a used car dealer in Opp.

The appellant returned to the Tom Thumb store about fifteen minutes later.Cosey got out of his car and went over to the appellant's car.She wanted him to get in her car, but he told her he had to go some place.The appellant then reached in her left shirt pocket and gave him a bag of plant material.Cosey got back in his car and left.The plant material was determined to be marijuana and the weight of the marijuana was 4.3 grams.

Hubert Ramer, the general manager of Jones Ford in Opp, Alabama, testified that the appellant had purchased a 1984 black Oldsmobile Cutlass Supreme, serial number 1G3AR47A4BM430405 on March 11, 1988.The tag number registered to that vehicle was 23BM 170.

The only witness who testified for the defense besides the appellant was Tammy O'Shields.O'Shields testified on direct examination that the appellant was at her house watching videotapes on the night in question.She testified that her boyfriend and his brother were also there that night.

The appellant testified that she was at O'Shields's house on the night of May 21, 1988.She remembered this particular night because her uncle's birthday was the day before.The appellant stated that she may have seen Cosey at the Tom Thumb store on an occasion but that she had never spoken to him.She stated that she had never sold marijuana.

I

The appellant contends that the trial court erred by asking the jury the following voir dire questions which were requested by the State:

1) "Have you or has any member of your family ever been charged with violation of any drug law?"

2) "Are you personally acquainted with any person who has been charged with violation of any drug law?"

The rule in Alabama is clear that "each party has the right to have questions formulated by it propounded to the jury, either by the court or by the party as the court may determine, if such questions reasonably relate under the circumstances to the question of the qualification or interest or bias on the part of prospective jurors."Alabama Power Co. v. Bonner, 459 So.2d 827, 833(Ala.1984) (quoting Griffin v. State, 383 So.2d 873, 876(Ala.Crim.App.), cert. denied, 383 So.2d 880(Ala.1980).SeeCooper v. Bishop Freeman Co., 495 So.2d 559(Ala.1986)andNodd v. State, 549 So.2d 139(Ala.Crim.App.1989)(overruling particular application of Bonner principle).This rule applies to the prosecution as well as the defense.Howell v. City of Birmingham, 383 So.2d 567(Ala.Crim.App.), cert. denied, 383 So.2d 570(Ala.1980).The nature, the variety and the extent of voir dire questioning is within the sound discretion of the trial court, and we will not reverse the trial court's decision on this matter unless there has been an abuse of discretion.Dawkins v. State, 455 So.2d 220(Ala.Crim.App.), cert. denied, (Ala.1984).

We do not find that the trial judge abused his discretion by asking the questions requested by the State.These questions were designed to determine if any of the jurors, or their relatives or friends, had ever been charged with drug offenses.The information sought to be elicited by these questions would certainly be relevant to a prospective juror's interest or bias in a drug case, even though it probably would not be grounds for the disqualification of the juror.SeeLuttrell v. State, 357 So.2d 1018(Ala.Crim.App.1978)(trial court did not err by asking, at the request of the State, whether any prospective jurors were prejudiced against undercover drug agents).Thus, we find no error here.

II

The appellant argues that the State should have been required to disclose the identity of the informant who was in the car with Cosey on the night in question."[I]f a confidential informer is a material witness, i.e., an active participant in the illegal transaction which leads to the charges brought against the accused, then the accused is entitled to learn from the State the identity of the confidential informant and his address."Self v. State, 420 So.2d 798, 800(Ala.1982)(citingRoviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639(1957)).

Cosey testified that an informant was in the car with him on the night of May 21, 1988.It is unclear from the record exactly what information this informant supplied with regard to this appellant.The informant obviously did not introduce Cosey to the appellant on the night in question because Cosey stated he had met the appellant in March of 1988 and he had seen her every weekend since that time.Furthermore, it does not appear that the informant set up the buy on this night because Cosey testified that his encounter with the appellant at the Tom Thumb store was a chance meeting.From the record, it is difficult to ascertain exactly how much of this drug transaction the informant actually witnessed.Cosey testified that he believes he got out of the car when the appellant initially asked him if he wanted any marijuana and the informant stayed in the car.In any event, he knows he got out of the car when the appellant returned with the marijuana.The informant stayed in the car on this occasion as well.

"In cases ... in which the informant has introduced the undercover law enforcement officer to the accused and then has only witnessed the drug sale between the officer and the accused, this Court has characterized the informant as a passive observer.In such cases, the disclosure of the informant's identity has not been required even where there has been a proper and timely request.Johnson v. State, 455 So.2d 997, 999(Ala.Cr.App.1984);Stanford v. State, 448 So.2d 472, 473(Ala.Cr.App.1984);Kilgore v. State, 50 Ala.App. 501, 503, 280 So.2d 206, 208(1973)."

Lightfoot v. State, 531 So.2d 57, 59-60(Ala.Crim.App.1988).

The facts which are contained in the record clearly indicate that the informant in this case was merely a passive observer to the drug sale.Thus, the trial judge correctly refused to require the State to reveal this informant's identity.

III

During the prosecutor's closing arguments, the following occurred:

"MRS. LOGGINS: Where are all these other people who should have been able to remember....

"MR. LANIER: Your Honor, now that is improper and we are going to ask for a mistrial at this point.

"MRS. LOGGINS: No, Your Honor, it is not improper....

"MR. LANIER: Yes, it is....

"MRS. LOGGINS: These witnesses are not equally available to us....

"MR. LANIER: Your Honor, again, we are going to object if it continues....

"THE COURT: I overrule.

"MR. LANIER: We ask for a mistrial.

"THE COURT: Well, I overrule your motion."(R. 172-73).

The appellant contends that the prosecutor's argument quoted above was improper.

"It is settled law in this state that no unfavorable inference can be drawn and no unfavorable argument to a jury made by counsel against a party to a cause because of the failure to call a witness to testify when that witness is accessible to both parties.'Available' and 'accessible' are words used interchangeably.Helton v. State, [433 So.2d 1186, Ala.Cr.App.1983]supra;Brown v. State, 50 Ala.App. 471, 280 So.2d 177, cert. denied, 291 Ala. 774, 280 So.2d 182(1973).Availability of a witness to one or the other of the parties is determined, first, by the party's superior means of knowing of the existence and identity of the witness and, second, by the relationship of the witness to the party that would reasonably be expected to affect the witness's personal interest in the outcome of the litigation, thus making it natural to expect or assume he would testify in favor of one party and against the other.Hunt v. State, 453 So.2d 1083(Ala.Cr.App.), cert. denied, 453 So.2d 1083(Ala.1984);Miller v. State, 431 So.2d 586(Ala.Cr.App.1983);Brown v. State, supra."

Hornsby v. State, 517 So.2d 631, 636(Ala.Crim.App.), cert. denied, 517 So.2d 639(Ala.1987).

"Whether a witness is available or accessible within the meaning of the rule prohibiting comment upon the failure of a party to call or examine a witness does not mean availability or accessibility for subpoena purposes, but rather a particular party's superior knowledge of the existence, identity, and expected testimony of the witness.Henry [v. State, 355 So.2d 411, Ala.Cr.App.1978], supra;Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520."

McMorris v. State, 394 So.2d 392, 402(Ala.Crim.App.1980), cert. denied, 394...