Rogers v. State

Decision Date04 October 1977
Docket Number6 Div. 549
Citation353 So.2d 19
PartiesJames Howard ROGERS v. STATE.
CourtAlabama Court of Criminal Appeals

J. Wilson Dinsmore, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and James L. O'Kelley, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of possessing heroin and sentenced to ten years imprisonment in the penitentiary. At arraignment, in the presence of his retained counsel, he pleaded not guilty. After conviction he applied for probation and when probation was denied he gave notice of appeal. He was found not to be indigent. New retained counsel represents appellant on this appeal.

The evidence in this case is not in conflict. Appellant did not testify nor did he offer any evidence in his defense.

There are only two issues presented on this appeal (1) whether the chain of possession of the controlled substance was broken, and (2) whether appellant had possession, dominion or control of the contraband.

We will set forth the facts adduced by the State and then treat the issues presented.

The State's first witness was Sergeant Paul A. Price, Jr., of the Birmingham Police Department. He testified that on October 1, 1976, he obtained from the magistrate a search warrant for the premises located at 1613-B 13th Avenue South, in Birmingham that after obtaining the warrant, he, Lieutenant Phillips, Lieutenant Bibb, Sergeant Sims, Sergeant Harris, and Sergeant Triplett of the Birmingham Police Department and Agent Kominitsky of the ABC Board executed the warrant; that, when they arrived at the specified apartment and knocked on the door and announced who they were, someone opened the front curtain and immediately closed it, whereupon they heard running and scurrying about inside; that Lieutenant Bibb then kicked the front door open, and they entered; that the first thing he saw when he got inside the apartment was a .45 automatic on the seat of a chair located inside the front door. He said that immediately after entering the apartment and seeing this .45, they noticed the appellant, Rogers, running up the hall from the bedroom toward the chair with the gun in it; that in addition to Mr. Rogers, they found three other persons in the apartment. He testified that these occupants were instructed to sit on a couch in the living room.

The search of the apartment was then initiated, and Sergeant Price testified that more than one item of alleged contraband was found in the apartment; that at 3:15 p. m. on the day of the search, one tin foil packet of white powder was taken from Debra Holt by Sergeant Sims. He said this tin foil packet was placed in an envelope and kept in Price's possession until he returned the evidence to the magistrate, at which time it was sealed and taken at a later date to the State Toxicologist; that it was in the same condition when it was taken to the State Toxicologist as it was when he received it; that a tin foil packet of white powder and a clear plastic bottle containing a material resembling hashish were found on the end table in the left bedroom at 3:17 p. m.; that another tin foil packet containing white powder was found on the opposite end table at 3:17 p. m. also. He said the packet found on the left end table was placed in an evidence envelope, carried to the magistrate, sealed, and later turned over to the State Toxicologist; that said envelope was initialed "P.A.P."; that such envelope was in his possession until it was shown to the magistrate and that afterwards, it was placed in the Narcotics safe, to which he had the only key. He later took said envelope from the Narcotics and transported it to the State Toxicologist. He testified that at the State Toxicologist's Office, he surrendered the envelopes to Criminalist Wayne Burrow; that from the time he found the tin foil packet, until the time he gave it to Wayne Burrow, it had been in his care, custody, and control the entire time and that it was in the same condition as it was when he found it. He said that the same procedure was followed regarding the envelope which was containing the tin foil packet found on the opposite end table.

Sergeant Price further testified that some blue tablets in a box were found on the chest of drawers in the bedroom at 3:20 p. m.; that exactly the same procedure regarding custody of the alleged contraband was followed with regards to the blue tablets.

He further testified that Sergeant Sims at 3:25 p. m., found another tin foil packet of white powder in the kitchen; that Sergeant Sims gave him that packet, and he placed it in an envelope and followed the same procedure as he did with the other articles.

On cross-examination, Sergeant Price stated that each item found that day was placed in a separate envelope. He also said that the Narcotics Detail's general procedure is to put all evidence found in the same general area in the same envelope, except that no two quantities of loose powders that could be mixed together would be put in the same envelope. For this reason, he had placed the tin foil packet and the clear, plastic bottle found on the left bedside table in the same envelope; that all of the envelopes were initialed by him and that he was the officer who turned the narcotics in to the State Toxicologist.

Sergeant Price then proceeded to identify State's Exhibits 2-11 which were various items found in the top drawer of a chest of drawers in the left rear bedroom of the apartment. State's Exhibit 3 was a checkbook from Central Bank with the name J. Rogers and Catherine Dixon Rogers, 1613 13th Avenue South. State's Exhibit 2 was a receipt for a temporary driver's license registered in the name James Howard Rogers, Jr., 1613-B 13th Avenue South. State's Exhibit 4 was a piece of mail from Jefferson Clinic addressed to James Rogers, 1613-B 13th Avenue South. State's Exhibit 5 was a bill from C.I.T. Finance Company to J. H. Rogers, 1613-B 13th Avenue South. State's Exhibit 6 was a piece of mail from Birmingham Trust National Bank addressed to Jane Rogers, 1613-B 13th Avenue South. State's Exhibit 7 was a checkbook from Central Bank in the name of J. Rogers or Catherine Dixon Rogers, and State's Exhibit 8 was a bill of sale to Mr. James Rogers for a motorcycle. State's Exhibit 10 was a tag receipt addressed to James Rogers, 1613-B 13th Avenue South. State's Exhibit 11 was a piece of mail from Central Bank to James or Jane Rogers, and Exhibit 9 was a Veterans Administration patient card in the name of James H. Rogers, 1613-B 13th Avenue South. Price testified that he took this evidence and placed it in an envelope and that this evidence had been in his possession from the time these items were taken until he came to the courtroom today.

Officer James Sims of the Birmingham Police Department was the next witness for the State. He stated that he participated in the search of the apartment located at 1613-B 13th Avenue South; that he entered through the rear door; when he entered the rear door, a girl ran in front of him, sat down on the floor and stuffed a tin foil packet between her legs; that he turned this tin foil packet over to Sergeant Price and that it was in the same condition when he turned it over to Price as it was when he found it; that he also found the tin foil packet in the kitchen area, turned it over to Sergeant Price and that it was in the same condition when he turned it over as it was when he found it in the cabinet.

Officer James E. Bibb of the Birmingham Police Department was the next State's witness. He testified that he, too, participated in the search of 1613-B 13th Avenue South, on October 1, 1976; that he entered through the front door of said apartment; that upon entering the apartment, he saw a gun and assisted in apprehending the appellant as he came running towards the gun; that he found a small tin foil packet in the bedroom on the right end table; that he turned this packet over to Sergeant Price in the same condition as it was when he found it.

Craig Bailey, a Criminalist for the State Department of Toxicology and Criminal Investigation was called to the stand next. He testified that his main duty was to identify drugs that are supposed to be in violation of the Controlled Substances Act of Alabama. He testified that Exhibits 12-15, the envelopes, were submitted to him by Sergeant Price and that such envelopes were placed under lock and key until he analyzed the contents.

Sergeant Price was recalled and...

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5 cases
  • Tyson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 29, 1978
    ...to prove so much of the indictment as shows the accused has committed the substantial offense specified therein. Rogers v. State, 353 So.2d 19 (Ala.Cr.App.1977), cert. denied, 353 So.2d 24 The State filed a motion to dismiss this appeal because the appellant did not give proper notice of ap......
  • Yarbrough v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 23, 1981
    ...necessarily depend upon proof of his ownership of the prohibited substance. Radke v. State, 292 Ala. 290, 293 So.2d 314; Rogers v. State, Ala.Cr.App., 353 So.2d 19, cert. denied, Ala., 353 So.2d 24; Henderson v. State, Ala.Cr.App., 347 So.2d 540, cert. quashed, Ala., 347 So.2d 543; and case......
  • Green v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 29, 1980
    ...guilt, this court will not disturb the verdict. The weight and probative value of the evidence presented a jury question. Rogers v. State, Ala.Cr.App., 353 So.2d 19; Williams v. State, Ala.Cr.App., 335 So.2d 249; Dulaney v. State, 56 Ala.App. 374, 321 So.2d The appellant's motion to exclude......
  • Williams v. State, CR-90-1553
    • United States
    • Alabama Court of Criminal Appeals
    • February 28, 1992
    ...For a variance to be material, it must be misleading or substantially injurious to the accused in making his defense. Rogers v. State, 353 So.2d 19 (Ala.Cr.App.), cert. denied, 353 So.2d 24 Any imagined variance in this case in no way prejudiced Williams' defense. Accordingly, the trial cou......
  • Request a trial to view additional results

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