Rose v. State

• Decision Date: 31 January 1992
• Citation: 598 So.2d 1040
• Parties: Tyrone ROSE v. STATE. CR 90-1572.
• Court: Alabama Court of Criminal Appeals

Page 1040

598 So.2d 1040

Tyrone ROSE v. STATE.

CR 90-1572.

Court of Criminal Appeals of Alabama.

Jan. 31, 1992.

Rehearing Denied March 13, 1992.

Certiorari Denied May 29, 1992

Alabama Supreme Court 1911023.

David B. Norton, Selma, for appellant.

James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Tyrone Rose, was charged by separate indictments with two instances of unlawfully distributing cocaine, in violation of Ala.Code 1975, § 13A-12-211. He was convicted by a jury on one of the indictments (CC-90-509) and later entered a guilty plea to the other indictment (CC-90-508). A sentence of 15 years' imprisonment was imposed on each conviction, with the sentences to run concurrently. Two issues, one related to each conviction, are raised in this appeal.

I

With regard to the jury conviction, CC-90-509, the appellant contends that the trial court erred in permitting the prosecutor to introduce testimony concerning the derivation of crack cocaine.

Raymond Adair, a drug analyst with the Department of Forensic Sciences, testified on direct examination that he had tested the substance previously identified as that sold by the appellant and had found it to contain cocaine "in the form of cocaine base and in this particular form, it was consistent with that of crack." R. 79. The following then occurred:

"Q. [By MR. GREENE, assistant district attorney:] And what is crack cocaine?

"A. Crack is a form of cocaine which can be smoked due to its being more volatile than the cocaine powder which is a salt of cocaine which normally comes from South America. And because of this, as I mentioned, because it's in the base form, it can be smoked and it's taken in through the mouth into the lungs and the gaseous state it passes rapidly about--

"MR. BOYNTON [defense counsel]: I object, Your Honor, the witness has answered the question.

"THE COURT: Sustained.

"MR. BOYNTON: On the subject, I object.

"THE COURT: Sustained.

"Q. How is crack cocaine formed or made?

"A. A solution of cocaine hydrochloride, first you take the powder of cocaine hydrochloride [and] place it in water.

"MR. BOYNTON: I think it's irrelevant. As to its history of how this comes about. He's done an analysis of [the] substance that was submitted and he finds that the substance was in violation of the controlled substance law as cocaine. I think that's satisfactory.

"MR. GREENE: Your Honor, I think the form in which it [is] is entitled to an explanation.

"THE COURT: I'll let him answer.

"A. Cocaine as it normally comes from South America is in the form of the cocaine hydrochloride which is a salt of cocaine as I mentioned before. Because it's in the salt form, it's soluble in water. It also means that is can be dissolved in water and it can be shot up, or it can be snorted. However, to be smoked, it has to be converted to its base. Now in order to make crack the way they make crack is, they take water and add the cocaine hydrochloride powder to it, try to saturate the solution as much as possible by heating it, and then adding baking soda. When the baking soda is added, cocaine comes out of the solution. It just turns the whole solution white. That's because the cocaine now is in the base form and as the base, it's not soluble in water anymore. So, it precipitates out, and this is cocaine base which can settle to the bottom in the form of crack.

"Q. All right. Is it just sitting out or are you cooking it? Do you heat it or what?

"A. It's heated. It's heated. In other words, to get more of the cocaine hydrochloride in solution, it would be analogous, if you're trying to get as much sugar to dissolve as possible, you heat it. You heat the solution of the water and you keep adding the sugar. You can do the same thing with cocaine and it will become what we call saturated for that particular temperature the water is, has dissolved as much of the cocaine as it can. At this point then, they add the bicarbonate, or baking soda combination with the chloride freeing the cocaine as the base forms. The base form is not soluble in the water anymore, so, it's forced out and it precipitates out, or what we say it settles out. But the solution turns white and then as little tiny crystals of cocaine base come in contact with each other, they form bigger crystals and you get this--

"Q. And what are the reasons for crack versus the powder cocaine?

"A. Because in the form of cocaine base or crack, it can be smoked.

"MR. BOYNTON: Your Honor, I object.

"THE COURT: We don't need to go into this any further. Is there any reason to go any further with this?

"MR. GREENE: Well, Your Honor, we feel like the jury would be entitled to know what crack cocaine is. That's why we're trying to explain it.

"MR. BOYNTON: It's highly prejudicial to my client, Your Honor. I think the witness already has answered.

"THE COURT: I think he's sufficiently explained it."

R. 79-82.

As can be seen from the above-quoted passage, the specific objection to this testimony at trial was that it was "irrelevant." On appeal, both the appellant and the State argue this issue on the basis of "relevance." However, "relevance" is not the question here. In this state, evidence is relevant if it has any logical relationship to the purpose for which it is offered. C. Gamble, McElroy's Alabama Evidence § 21.01(1) (4th ed. 1991). The above-quoted testimony of drug analyst Adair was, according to the prosecutor, offered to explain to the jury the nature and derivation of crack cocaine. Quite clearly, the testimony was relevant for this purpose. However, the prosecutor's stated purpose for offering this testimony--explaining the nature and derivation of crack cocaine--was not material to this case. See generally McElroy's Alabama Evidence § 20.01.

Agent Darryl Armour of the Alabama Beverage Control Board testified that, around 1:00 p.m. on the afternoon of March 2, 1990, he purchased a "$20 rock" from the appellant. R. 47-48. Armour unequivocally identified the appellant as the person from whom he purchased the substance. He also testified that he had spoken to or dealt with the appellant on several occasions prior to March 2, 1990. R. 45-46. The appellant did not testify or otherwise present an affirmative defense.

Section 13A-12-211, Ala.Code 1975, provides that "[a] person commits the crime of unlawful distribution of controlled substances if, except as otherwise authorized he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance...." It is clear that this section proscribes certain activity in connection with "a controlled substance," regardless of the form of the controlled substance. In a prosecution under this section, the State need prove only that the defendant engaged in proscribed activity in connection with an actual controlled substance.

Although the indictment against the appellant tracked the language of § 13A-12-211, it is clear from the evidence adduced at trial that the State was proceeding solely on the "sells" alternative. There was absolutely no indication that the appellant manufactured the crack cocaine, nor did the State make any allegation to that effect. Under the evidence presented in this case, the only issues to be resolved by the jury were whether the appellant sold a substance and whether that substance was cocaine. How the cocaine came to be in the particular form in which it was sold was immaterial because it was of absolutely "no consequence to the action being litigated." McElroy's Alabama Evidence § 20.01. Cf. Wilson v. State, 551 So.2d 447, 448 (Ala.Cr.App.1989) (where rape defendant presented alibi defense and denied having intercourse with victim, consent was not at issue and proffered testimony of defense witness who would have testified as to " 'the victim's desire for sex' with [the defendant]" was immaterial and properly excluded).

The objection at trial, while incorrectly asserting that drug analyst Adair's testimony in this regard was "irrelevant," vaguely alluded to the materiality aspect of this testimony, although not utilizing that specific term. However, we are not convinced that the objection at trial was sufficient to apprise the trial court that the appellant was challenging this testimony on the grounds of materiality. ¹ "Objections must be stated with 'sufficient particularity' to apprise the trial court of 'the basis for the objection' so as to permit the trial court to make an informed decision 'on the particular legal issue involved.' " Robinson v. State, 574 So.2d 910, 917-18 (Ala.Cr.App.1990) (quoting Bland v. State, 395 So.2d 164, 168 (Ala.Cr.App.1981)). See also McElroy's Alabama Evidence § 20.01 ("the party who contends that the evidence is irrelevant--i.e. that the evidence doesn't lead in logic to the purpose for which it is offered--may be argued to have waived any subsequently asserted immateriality objection based upon the assertion that the purpose is of no consequence to the action being litigated").

Furthermore, even if we deem the objection sufficient to bring the issue properly before this Court, we fail to see how, in this particular case, the appellant was harmed by this testimony. As we stated in Buchannon v. State, 554 So.2d 477, 481 (Ala.Cr.App.), cert. denied, 554 So.2d 494 (Ala.1989), overruled on other grounds, Pardue v. State, 571 So.2d 333 (Ala.1990):

"It is clear under Rule 45[, A.R.App.P.,] and [Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983),] that, in determining whether a particular error was harmless or prejudicial, this court is to review a defendant's trial as a whole, rather than to focus solely on the error involved. This review, of necessity, includes an evaluation of the evidence properly admitted against the defendant. 'An error that...