Sturdivant v. State

• Decision Date: 02 August 1983
• Docket Number: No. 6,6
• Citation: 439 So.2d 184
• Parties: Roderick Anthony STURDIVANT v. STATE. Div. 896.
• Court: Alabama Court of Criminal Appeals

Page 184

439 So.2d 184

Roderick Anthony STURDIVANT v. STATE.

No. 6 Div. 896.

Court of Criminal Appeals of Alabama.

Aug. 2, 1983.

Rehearing Denied Oct. 4, 1983.

Roy Brown, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.

PER CURIAM.

This is an appeal from a conviction under an indictment charging the appellant with the unlawful possession of "1.3 grams of marijuana, a controlled substance, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Section 20-2-70 of the Code of Alabama 1975." The trial court submitted to the jury not only the issue of the defendant's guilt but also the question whether the marijuana allegedly possessed by defendant was possessed by him for his personal use only. Defendant was adjudged guilty of a felony and sentenced to imprisonment for fifteen years, it having been shown at the sentence hearing that defendant had been previously convicted of three felonies.

The undisputed evidence shows that law enforcement authorities had obtained a search warrant of an apartment in an apartment building in Pinson, Jefferson County, Alabama, and upon their execution of that warrant they found in the locked apartment the defendant and a female companion. The following is a part of the testimony of one of the officers:

"I opened the door, there is a straight shot down the hallway of the apartment building. I saw a--I didn't know if it was a male or a female dart run across the hall into a room. At that point we used back there myself and David Luker and McAdams and got a black female and a black male out of the bedroom, got the female out of the first bedroom and got the black male out of the back bedroom."

The marijuana was found in the back bedroom of the apartment. A witness testified that there was clothing for men and women in the closet of that bedroom, that at the time he entered the room the TV was playing, that "There was a cold drink on top of the television and there was a pair of men's shoes under the television." He further testified that "There was clothing throughout the bedroom, bathroom and closet, both men's and women's."

I

We agree with the legal proposition relied upon by appellant that if the evidence does no more than furnish basis for "suspicion, surmise or conjecture" that defendant is guilty, he should not be convicted, but we disagree with his conclusion that such proposition is applicable here. The circumstances as a whole were sufficient to convince a jury that defendant was not just a momentary visitor in the particular apartment where the marijuana was found and that he, either singly or jointly with the other occupant, had constructive possession of the drug. Appellant's present position would be stronger if, at the time of the search by the officers, there had been evidence that the apartment was owned or rented by the other occupant, rather than appellant, but the evidence was silent on this point. This fact distinguishes the instant case from Parks v. State, 46 Ala.App. 722, 248 So.2d 761, cited by appellant.

II

Appellant questions the sufficiency of the evidence to establish the chain of possession by the officers of the marijuana found in the apartment. One of them testified:

"I kept it in my possession and I took those items from him [another officer present at the time], sealed them up in an envelope and wrote on the front of it certain information that it required, and I locked it in the trunk of my car, my UNCO vehicle.

"Q. How did you package that particular substance?

"A. I placed it in an envelope.

"Q. What kind of envelope did you place it in?

"A. It's a Manila envelope that we have at our office and I put another envelope on the top of it with certain information that is required by our office. Then, I sealed it and initialed it on the back."

The witness testified that he then put the envelope in the trunk of his car until the following Monday when he gave it to the toxicologist who testified that the chemical analysis of the material proved that it was marijuana.

Thus, the chain of custody was established by this evidence.

III

Appellant next challenges the sufficiency of the affidavit justifying the issuance of the search warrant. The transcript does not include a copy of the search warrant or the affidavit upon which it is based. As we have often observed, an affidavit or search warrant not contained in the record cannot be reviewed by this court as to its sufficiency or as to the facts supporting the warrant. Thomas v. State, 383 So.2d 214 (Ala.Cr.App.1980).

IV

Appellant states his next issue as follows:

"May the State obtain a search warrant alleging drugs, (talwin and cocaine), when the true purpose is to arrest an alleged FBI fugitive, Deborah Annsenetta Williams?"

He bases his contention upon that part of the testimony of the officer procuring the search warrant which reads:

"Mr. Carson, you had a search warrant at about, approximately, 4:00 or thereabouts you search this location. The two Federal Bureau of Investigation Agents, they were with you, were they looking for drugs or were they along for some other reason?

"A. At my request.

"Q. Mr. Carson, isn't it a fact that they thought this Deborah, was a fugitive from justice?

"A. I thought that.

"Q. You thought it?

"A. Yes, sir.

Although the above-quoted testimony indicates that "a dual purpose existed to say the least, or a trumphed [sic] up purpose of looking for drugs, to enter the house so the FBI agents could arrest the alleged fugitive," we cannot say that there was such a trumped up purpose.

V

Appellant apparently contends that possession of a small amount of marijuana should be a misdemeanor. The law is clear that showing possession for personal use is a matter of defense; the burden of proof as to this statutory exception is on the accused. Roberts v. State, 349 So.2d 89 (Ala.Cr.App.1977). Also found in the apartment searched in this case were a dietetic scale, mannite (a substance used to dilute cocaine), papers and a pipe. The appellant did not testify.

VI

The sixth issue presented by appellant is thus stated in his brief: "Was the verdict of the jury contrary to the law?" He makes substantially the same argument and relies largely upon the same case that we have considered in I above. He cites the additional authority of Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970) for the established principle that in order for the defendant to have been guilty of the "constructive possession" of marijuana, he must have known of its "presence." As indicated in I above, we are of the opinion that the circumstances shown by the evidence were sufficient to provide substantial evidence that appellant knew of the presence of the marijuana.

VII

In his short argument as to this next issue, appellant says, "The tip of a drug user was not properly corroborated so that a search warrant could be issued" and that "the real purpose was not drugs, but to get into the apartment and arrest the alleged fugitive." We have considered the first quoted part of his argument in III above and the second part of his argument in IV above. We are unable to agree with either part of appellant's argument. Furthermore, we do not agree with the last of appellant's arguments as to his seventh issue, wherein he simply states, "The jury verdict was contrary to the great weight of the evidence."

VIII

In a one-paragraph argument, appellant attempts to convince us that "the jury was caused to convict the appellant based on bias, prejudice, and improper motive, and was contrary to the great preponderance of the evidence." We are not convinced that the verdict was contrary to the great preponderance of the evidence. We also disagree with appellant's conclusion that the verdict was "based on bias, prejudice, and improper motive." Our attention is not specifically called to any statement or occurrence that reflects any bias, prejudice, or improper motive on the part of anyone connected with the case. The mere fact that an individual may have had strong convictions in favor of law enforcement and law observance does not permit a just conclusion that he acted with bias, prejudice, or improper motive.

IX

Appellant's ninth issue pertains to the action of the court in sentencing defendant to imprisonment for a period of fifteen years. Much attention was given to the extent of the punishment both at the sentencing and upon the hearing of the defendant's motion for new trial. The state, after due notice, invoked the Habitual Felony Offender Act, and there was considerable argument as to whether the Act was applicable under the circumstances, particularly since two of the three previous felony convictions of the defendant were for the possession of marijuana. All concerned apparently took note of the fact that under the Controlled Substances Act, the maximum term of imprisonment for punishment for a felony "conviction for the first offense" is 15 years. (Code § 20-2-70(a)). It appears also that all concerned took note of the fact that pursuant to the Habitual Felony Offenders Act, if said Act is applicable in the instant case, the appellant's three previous felony convictions necessitated that he "be punished by imprisonment for life or for any term not more than 99 years but not less than 15 years." (Code § 13A-5-9(c)(1)). Counsel for the state insisted that the law as to habitual felony offenders should apply. Counsel for defendant argued to the contrary.

The question as to the legality or appropriateness of the punishment, imprisonment for fifteen years, was raised again in the trial court, this time on defendant's motion for a new trial. At that time counsel for defendant who had represented him on the trial of the case had been replaced by his present counsel, who was appointed by the trial court between the time of trial and the motion for a new trial. After considerable argument...