Smith v. State
| Decision Date | 16 August 1977 |
| Docket Number | 8 Div. 867 |
| Parties | Glenn SMITH v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Robert M. Hill, Jr., Florence, for appellant.
William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State, appellee.
The appellant, Glenn Smith, was charged with possessing pethidine contrary to the provisions of the Alabama Controlled Substances Act. The trial was held before a jury and the appellant was found guilty. After judgment was pronounced, he was sentenced to five years imprisonment. It was from this judgment that he appealed.
In this appeal he seeks reversal on three grounds:
1. That the affidavit supporting the search warrant contained misrepresentations or erroneous statements of the informant which were material to the establishment of probable cause.
2. That the State failed to prove that the appellant was in constructive possession of contraband and had knowledge of its presence.
3. That it was error to admit for the jury's consideration unidentified capsules, tablets and pills, which were similar in appearance to the items charged in the indictment and alleged to be in the possession of the appellant.
On December 21, 1975, Sgt. Smelley of the Alabama Bureau of Investigation, a division of the Alabama Department of Public Safety, received information by telephone from a reliable informant who said that approximately 7:00 P.M., he had purchased three hits of demerol from the appellant. About thirty minutes later, Officer Smelley met the informant, Ellie Fleming Martin, III, at Wilson Dam and was told that he, Martin, had purchased narcotics from the appellant, Glenn Smith, and at the same time had observed other narcotics in Smith's possession. Martin informed Smelley that the drugs "were kept in a shoe box located under the bed in the first bedroom on the left as you started down the hall." Based on this information, Officer Smelley made the following affidavit in support of his application for a search warrant:
The search warrant was issued on December 22, 1975, and approximately 3:00 P.M. that day, Sgt. Smelley with a team of officers served it. The premises described in the warrant were alleged to be the residence of the appellant and at the time the officers arrived he was standing in the front yard talking with a neighbor, Casey Skidmore. Also present at the time was Smith's wife, two of his daughters, and his son, Lanny Smith, who arrived some minutes later. The search of the house revealed approximately 956 pills in a shoe box underneath the bed of the bedroom on the left as one started down the hall. The drugs, which were the subject of this prosecution, were found in a bottle in a dresser drawer in that room. Three more bottles of pills were found in a Pontiac automobile registered to the appellant's son, Lanny Smith. All the drugs were not identified, only those found in the dresser drawer were analyzed and found to contain pethidine, which is "also known as merperidine" of which "Demerol is the brand name."
On May 10, 1976, a jury was selected but prior to presenting any evidence to the jury, a hearing was held out of their presence on appellant's motion to suppress. Counsel for appellant at trial requested that he be permitted to add to his written motion to suppress, a new ground, Number 20. Permission granted by the court and appellant was allowed to add the following ground:
"For that information alleged to be from an informant, the basis of this search warrant, was heresay (sic), in that the informant stated to the affiant that he he (sic) did not personally observe the drugs on the premises of the Defendant, but that the informer heard from another person, who allegedly personally observed the drugs, and that there is a failure in the warrant to prove the first informant was a reliable person."
During the suppression hearing when Ellie Martin, the informant, was being questioned by the appellant's attorney the following occurred:
Following Martin's testimony during the suppression hearing, Lawrence D. Smelley was called as witness on behalf of defendant and the following occurred:
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Morrison v. State
...conflicting testimony given at a suppression hearing, is that such testimony poses a question for the trier of fact. Smith v. State, Ala.Cr.App., 351 So.2d 668. Therefore, when conflicting evidence is presented before a trial judge, great weight is given to his findings. Ard v. State, Ala.C......
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Morrison v. State
...conflicting testimony given at a suppression hearing, is that such testimony poses a question for the trier of fact. Smith v. State, Ala.Cr.App., 351 So.2d 668. Therefore, when conflicting evidence is presented before a trial judge, great weight is given to its findings. Ard v. State, Ala.C......
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Myers v. State
...the weight and credibility to be attached to the witnesses' testimony. Brumback v. State, 371 So.2d 999 (Ala.Cr.App.1979); Smith v. State, 351 So.2d 668 (Ala.Cr.App.), cert. denied, 351 So.2d 675 (Ala.1977). We are of the opinion that the evidence presented at the suppression hearing was su......
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Kitchens v. State, 8 Div. 943
...The weight and credibility to be attached to the testimony of these witnesses was also a question for the trial judge. Cf. Smith v. State, 351 So.2d 668 (Ala.Cr.App.), cert. denied, 351 So.2d 675 (Ala.1977) (the weight and credibility to be attached to the testimony of witnesses at a suppre......