Story v. State

• Decision Date: 31 May 1983
• Docket Number: 5 Div. 613
• Citation: 439 So.2d 1317
• Parties: Brenda Diane STORY, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1317

439 So.2d 1317

Brenda Diane STORY, alias v. STATE.

5 Div. 613.

Court of Criminal Appeals of Alabama.

May 31, 1983.

Rehearing Denied July 5, 1983.

Certiorari Denied Nov. 4, 1983

Alabama Supreme Court 82-1002.

William T. Denson, Goodwater, for appellant.

Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.

HARRIS, Judge.

Appellant was convicted by a Tallapoosa County Circuit Court of possessing marijuana for trafficking. Appellant was sentenced to five years' imprisonment and fined $25,000.

The state's first witness was J.W. Tapley of the Dadeville Police Department. In the early morning hours of August 2, 1980, Officer Tapley noticed a Cadillac automobile weaving on the road. The officer stopped the automobile and arrested the driver, Michael Dean Wall, for driving on the wrong side of the road. Appellant was riding on the passenger's side of the car when it was stopped.

Officer Tapley drove Wall to the county courthouse to perform an alcohol detection test. Officer Leonard Brand, Officer Tapley's partner, drove the Cadillac and appellant. As Officer Brand got into the automobile, he noticed a pistol on the driver's side and a shotgun on the back seat. While the P.E.I. test was being administered, Officer Brand returned to the automobile to remove the weapons. As he removed them, he noticed a cosmetics case in plain view on the floor of the passenger's side. While he was removing the case from the passenger's side, a large pocket of money fell out of the car, as well as a bag of green vegetable material. The case also contained white pills and drug paraphernalia.

Officer Brand took the case into the courthouse and asked who owned it. Both Wall and appellant denied ownership. He then obtained a search warrant, and, along with Deputy Sheriff David Berry, searched the automobile. The officers found a blue flight bag in the automobile trunk containing around three pounds of marijuana.

On cross-examination, it was determined that Mike Wall was driving the Cadillac when it was stopped, and he also owned the automobile.

Mr. Taylor Noggle, a state toxicologist, identified the flight bag and testified that he examined green vegetable material found in the bag. He determined the material to be marijuana.

The state called a series of witnesses who had seen appellant at a Marty's Marina during a party the night before appellant's early morning arrest.

Mr. Steve Morris was at Marty's Marina when appellant drove up in a beige Oldsmobile Cutlass. He testified that appellant asked him if he wanted to buy a bag of marijuana.

Mr. Randall Baker testified that he had ridden around with appellant and her cousin, Mike Branch, before going to Marty's Marina. While stopped to drink some beer and smoke marijuana, Mr. Baker walked around the back of appellant's automobile. While the trunk was open, Mr. Baker saw in the trunk a trash bag of marijuana and a "blue tote case."

Mr. Bobby Price testified that appellant drove up in a tannish Oldsmobile Cutlass and asked him if he wanted to buy a bag of marijuana. He saw her open her trunk and noticed a blue bag with marijuana in it. He stated that the bag appeared to be the same as the blue flight bag found in Wall's trunk, but he was not positive it was the same bag.

Mr. Ronnie Thomas testified that he also saw appellant at Marty's Marina on the night in question. Mike Branch and Randall Baker were with her. According to Mr. Thomas, appellant opened the trunk of her beige Oldsmobile Cutlass. In the trunk was a big unzipped bag which contained bags of marijuana. He saw someone walk up to the trunk and accept a bag of marijuana from appellant.

Appellant then walked up to a small group of people, pulled a bag of marijuana out of the cosmetics bag found in Wall's car, and asked if they would like to smoke a joint. After they all smoked a joint, appellant and Mike Branch left.

All of these witnesses stated on cross-examination that they knew Mike Wall or were at least acquaintances of his.

Michael Wall took the stand but invoked his Fifth Amendment right against self-incrimination.

After the state rested, appellant took the stand. She stated that she left her home in Georgia on the afternoon of August 1, to visit relatives in Alabama. Late that afternoon, she arrived at her aunt's house in Perryville where she was to spend the night. She had a blue canvas bag and a red overnight bag which she took into her aunt's house on arrival. She admitted going to Marty's Marina but denied attempting to sell marijuana. She also denied having marijuana in her car and she denied ever owning or seeing the cosmetics case or the blue flight bag found in Wall's car.

She stated that she met Wall at a local bar after she had left Marty's Marina. They had a few drinks and then left to find something to eat. She rode with Wall and her cousin drove her car. While looking for something to eat Wall was stopped by the police.

Margaret Branch, appellant's aunt, testified that appellant arrived at her house the afternoon of August 1. Mrs. Branch saw appellant unload the trunk and she did not see an overnight flight bag or a cosmetics case.

Mike Branch stated he rode with appellant the night of August 1. Before they went to Marty's Marina, they had stopped to get some beer out of the trunk and had inadvertently locked the keys in the trunk. Mr. Branch had to break the lock open to get into the trunk, and he testified that the only way to get into the trunk was to use a screwdriver.

He also stated he never saw a blue flight bag or a cosmetics case, and he never saw appellant attempt to sell marijuana that night.

On rebuttal, Mike Wall agreed to testify on a question-by-question basis. He testified that he met appellant at a local bar late at night on August 1. According to Wall, appellant attempted to strike a marijuana deal. After he rode with her a short distance from the bar, she opened up her trunk and offered to sell him marijuana. When asked if he saw the blue flight bag, he stated it was dark but he did not see a bag.

Late in the night appellant agreed to spend the night with Wall. They were first going to get something to eat, and Mike Branch was going to meet them at a local restaurant. Before she got into his car, appellant took a bag from her trunk and put it into his trunk. He denied ownership of the blue flight bag taken from his trunk.

The defense counsel recalled appellant, who denied putting anything into Wall's trunk.

Appellant raised a number of issues in her motion for new trial which constitutes the bulk of her arguments on appeal.

The most troubling issue raised in the motion concerns new evidence. During the motion for a new trial, appellant called Officer Mike Parrish to the stand. Officer Parrish was an undercover agent for the Alexander City Police Department. He had previously worked as a police officer investigating drug deals in Kansas.

Officer Parrish testified that he was present as a third party in an undercover role while Mike Wall bought cocaine from a David Story in the parking lot of the same local bar where he and appellant had met. Story was not related to the appellant. According to Parrish, Wall told him that the marijuana was his and he had his friends come and testify that the marijuana was appellant's and had been in her car.

From the record:

"Q. Now, did you talk with Michael Wall about his having been arrested with Diane Story?

"A. Yes, sir, I did.

"Q. And do you remember when this conversation took place the first time?

"A. Yes, sir, it was in a car out in front of the Exit Inn. We were at a bar sitting out in the parking lot with a subject named David Story. And they were discussing at that time Mr. Wall was purchasing some cocaine from Mr. Story. And Wall was saying something about he had to be careful because he had been arrested in Dadeville before after leaving the Exit Inn.

"Q. And if I might ask you this, now, when you were working, were you working at this time for the Alexander City Police Department?

"A. Yes, sir.

"Q. And what was the nature of your work at that time?

"A. Undercover in Narcotics.

"Q. Now, for the record, when you were working undercover and in narcotics, of course, you were not in uniform? And it was not known? It was not known to Wall, made known to Wall, that you were, of course, with the Police Department, was it?

"A. No, sir.

"Q. And you said this conversation took place at the Exit Inn and that Michael Wall was there and who else was there?

"A. A subject named David Story.

"Q. And what, if anything, did Wall say about his having been arrested on this occasion with Diane Story?

"A. Just stated that he had been at the Exit Inn drinking.

"MR. GAVIN: We object. This would be hearsay.

"MR. DENSON: It's certainly--

"THE COURT: Well, of course, it would be I presume to contradict what was said at trial. Overrule the objection.

"A. Just said that he was out there drinking and that a man named Michael Branch which I know as Sprout Branch introduced a girl named Diane to Mr. Wall. And that they stayed around and drank for about an hour. And that they were going to go to the--I believe they said Omelette Shoppe to go to eat and apparently the girl was supposed to be with Wall. And Mike Branch was supposed to drive her car. And Mr. Wall said he knew better than to go through Dadeville. And he went through Dadeville and he had been drinking and that the police pulled him over, stopped him. And when they were stopping him that the girl had a bag of quaaludes in her purse. And she took them out of her purse and put them under Mr. Wall's seat. And Mr. Wall told her to get them out from under the seat. And she refused to do so. At that time, Mr. Wall said he was arrested for driving under the influence and that they took them out of the car and looked through the car and found the pills under the seat.

"Q. Did Mr. Wall say what kind of car he was driving?

"A. Cadillac, I believe.

"Q. And...