Sharpe v. State
| Decision Date | 27 May 1980 |
| Docket Number | 5 Div. 480 |
| Citation | 384 So.2d 633 |
| Parties | Eddie Lamar SHARPE v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Michael D. Cook, Lanett, for appellant.
Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
A jury found defendant-appellant guilty under an indictment charging in pertinent part that he "did unlawfully sell, furnish or give away marijuana, a controlled substance contrary to the provisions of the Alabama Uniform Controlled Substances Act."
Appellant insists that his demurrer to the indictment on the ground of its failure "to allege the name of the vendee and therefore does not inform the Defendant of the charge against him which he must defend" was erroneously overruled. He expressly acknowledges that the Supreme Court of Alabama in Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973), rev'g 51 Ala.App. 552, 287 So.2d 447, disposed of the identical insistence adversely to appellant. He cannot rightly expect this Court to rule otherwise.
Another insistence of appellant, that, as the substance alleged to have been sold, furnished or given away was spelled "marijuana" in the indictment as distinguished from "marihuana" as it is found in the Alabama Uniform Controlled Substances Act (Code of Alabama 1975, § 20-2-23(3)(j), the corpus delicti was not proved by evidence showing that "marijuana" had been sold without any evidence showing that it contained "tetrahydrocannabinol," there was a failure to establish the corpus delicti of a crime constituting the violation of the Alabama Uniform Controlled Substances Act, is not in accord with what has heretofore been authoritatively held. In Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied, 294 Ala. 758, 312 So.2d 414 (1975), it was held that: "marijuana" contains "tetrahydrocannabinol (THC)." To the same effect are Hill v. State, 56 Ala.App. 369, 321 So.2d 708, 712 (1975), cert. denied, 295 Ala. 405, 321 So.2d 713; Smith v. State, Ala.Cr.App., 335 So.2d 393, 394-395, cert. denied, 335 So.2d 397 (1976). The precise question now considered has been twice decided against appellant. Radney v. State, Ala.Cr.App., 342 So.2d 942, 945, cert. denied, 342 So.2d 947 (1977); Winnings v. State, Ala.Cr.App., 370 So.2d 323, 328, cert. denied, 370 So.2d 329 (1979).
We do not agree with appellant's contention that the chain of custody as to the marijuana was not established by the evidence, but there is no occasion for a full discussion as to the evidence as to the links of such chain, for the reason that, as stated in appellant's brief, the substance "was offered into evidence and admitted without objection." He further says in his objection that "Defendant would therefore gain nothing by objecting to the introduction of the substance in evidence at this (that) time." In other words, it appears that the particular insistence of appellant now considered is conditioned on a determination in his favor of his contention that the failure of the evidence to show by express testimony that the marijuana contained tetrahydrocannabinol constituted a failure to show a violation of the controlled substances law. As the condition has failed as noted above, nothing remains to support the conclusion urged by appellant.
The witness for the State who testified that he bought marijuana from the defendant was Guy Metcalf, Jr., an employee of the Alabama Bureau of Investigation, Department of Public Safety, Narcotics Division, who said that about 9:00 P.M. on May 28, 1978, he bought the substance from defendant, who was identified to him at that time merely by the name of "Slim." This occurred in a block house on Gate Street in Fairfax. While the witness was in the process of testifying on direct examination as to his said purchase of the marijuana, defendant indicated an objection to the witness' in-court identification of defendant and asked for a voir dire interrogation of the witness out of the presence of the jury, which was granted. During such hearing out of the presence of the jury, it was shown that on November 30, 1978, at a trailer or mobile home of Lamar Bagley a search warrant was in the process of being executed for search of the premises and that at such time Officer Metcalf had been requested by officers executing the warrant to appear at the trailer, which he did. There he saw the defendant, who he then learned was named Eddie Lamar Sharpe. Appellant made it known that he claimed that any in-court identification of the defendant by Officer Metcalf was tainted by an illegal search of the premises or an illegal arrest of defendant at the time. It is now contended by appellant that "Mr. Metcalf therefore had no authority to be where he was and was in the process of an illegal search and seizure when he identified the defendant and ascertained his name." He bases his contention on Code of Alabama 1975, § 15-5-7, which provides:
"A search warrant may be executed by any of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution."
Neither party offered the search warrant in evidence, and we do not have the benefit of a copy thereof. Assuming, however, that defendant's contention is correct that the warrant was not directed to Officer Metcalf but to another officer or officers, we are unable to agree with appellant's conclusion that there was a violation of the letter or spirit of § 15-5-7, Code of Alabama 1975. The pertinent part of the testimony of Officer Metcalf was as follows:
Appellant further contends that the district attorney commented in the presence of the jury "concerning the Defendant's failure to testify," in violation of Code of Alabama 1975, § 12-21-220. The occurrence that gave rise to appellant's contention occurred before the trial commenced, before the jury was selected to try the case, and during the interrogation by the parties of the prospective jurors to aid them in the selection of the jury to try the case. After considerable interrogation of the jurors, defendant continued to question them as follows:
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...with existing case law. Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981), cert. denied, 408 So.2d 180 (Ala.1982); Sharpe v. State, 384 So.2d 633 (Ala.Cr.App.1980); Radney v. State, 342 So.2d 942 (Ala.Cr.App.1976), cert. denied, 342 So.2d 947 (Ala.1977); Smith v. State, 335 So.2d 393 (Ala.C......
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