Singleton v. State
Decision Date | 25 August 1989 |
Docket Number | 6 Div. 984 |
Citation | 553 So.2d 689 |
Parties | Georgette SINGLETON, alias v. STATE. |
Court | Alabama Court of Criminal Appeals |
Erskine R. Mathis, Birmingham, for appellant.
Don Siegelman, Atty. Gen. and James B. Prude, Asst. Atty. Gen., for appellee.
Georgette Singleton was indicted for trafficking in cocaine and possession of marijuana, in violation of § 20-2-80, Code of Alabama 1975. She was "found guilty as charged in the indictment" and was sentenced to 20 years in prison. She raises seven issues on appeal.
The appellant Singleton first contends that the trial court erred in denying her motion for mistrial after evidence concerning a prior search of her home was admitted into evidence. The record reveals that the first reference to the earlier visit by law enforcement officers to the appellant's home occurred during the direct examination of Officer Terry Ratigan as follows:
The appellant failed to object to this testimony. The record also reveals that the appellant did object to several subsequent references made to the July incident.
Leverett v. State, 462 So.2d 972, 979 (Ala.Cr.App.1984) (citations omitted). See also Wynn v. State, 423 So.2d 294 (Ala.Cr.App.1982). "[I]t is well-established that it is not error to allow facts to be shown over objection when they have already been proven without objection." Hunt v. State, 453 So.2d 1083, 1086-87 (Ala.Cr.App.1984). See also Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied, 398 So.2d 322 (Ala.1981). The appellant should have raised her objection to this testimony when it was first presented. Therefore, she failed to preserve this issue for review.
The record reveals that, during the second time the July incident was raised, there was a reference to the execution of a search warrant. This also occurred during the direct examination of Officer Ratigan. The trial judge immediately instructed the jury to disregard the testimony concerning the execution of a search warrant and also explained that the testimony concerning the presence of the law enforcement officers at the appellant's residence in July was relevant to other issues in the case. We need not address the admissibility or inadmissibility of the reference to the search warrant because, even if such testimony was found to be inadmissible, the trial judge gave the jury prompt, curative instructions. When a trial court immediately instructs the jury to disregard any improper remarks, there is a prima facie presumption against error. Woods v. State, 460 So.2d 291 (Ala.Cr.App.1984); Hammins v. State, 439 So.2d 809 (Ala.Cr.App.1983). A mistrial is properly denied when the prejudicial qualities of a remark can be cured by the trial court. Woods, Mallory v. State, 437 So.2d 595 (Ala.Cr.App.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 722, 79 L.Ed.2d 184 (1984). The appellant's motion for mistrial was properly denied.
We also point out that the appellant is responsible for the fourth reference to the July 23, 1987, visit. The following occurred during the appellant's cross-examination of Officer Ratigan:
Certainly, if anyone called the jury's attention to the alleged inadmissible evidence, it was the appellant.
The appellant next contends that the trial court made two prejudicial statements in front of the jury that require a reversal of her conviction. The record reveals that the appellant failed to object to or move to exclude either statement. Lokos v. State, 434 So.2d 818, 823 (Ala.Cr.App.1982), aff'd, 434 So.2d 831 (Ala.1983). Even if this issue had been preserved for review, there is no indication in the record that the appellant was prejudiced in any way by the statements which she cites to this court. See Gurganus v. State, 520 So.2d 170 (Ala.Cr.App.1987).
The appellant contends that she was deprived of her constitutional right to testify in her own behalf because the trial court implied that she could be impeached with evidence concerning the July search if she took the stand. This argument has no merit. The following excerpt from the record contains the exchange between the court and defense counsel upon which the appellant's argument is based:
The trial court clearly stated that the admissibility or inadmissibility of such evidence would be determined when the question actually arose. The appellant's argument is based solely on speculation and conjecture. Since there was no adverse ruling against the appellant, there is nothing for this court to review. Hill v. State, 409 So.2d 943 (Ala.Cr.App.1981).
Without a ruling, a request for a ruling or an objection to the trial court's failure to rule, there is nothing preserved for review. Moore v. State, 457 So.2d 981 (Ala.Cr.App.1984), cert. denied, 470 U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (1985). Furthermore, even if the evidence was held to be admissible at the time it was offered, the fact that such evidence could impeach the appellant would not prevent her from testifying in her own behalf. All witnesses who take the stand may be subject to impeachment.
The appellant contends that the trial court erred in denying her motion for judgment of acquittal because there was insufficient evidence to sustain the conviction. The appellant argues that the State did not sufficiently prove that the appellant had knowledge of the cocaine found in the car. The appellant also contends that the State did not sufficiently connect her with the contraband found in the apartment because she allegedly shared the apartment with another individual.
Alabama Code 1975, § 20-2-80(2), provides that anyone who is knowingly in actual or constructive possession of 28 grams or more of cocaine is guilty of trafficking in cocaine:
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