Terry v. State

Citation570 So.2d 781
Decision Date15 June 1990
Docket Number8 Div. 424
PartiesPhillip Benford TERRY v. STATE.
CourtAlabama Court of Criminal Appeals

Steven Sasser, Decatur, for appellant.

Don Siegelman, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of trafficking in cannabis and was sentenced to 25 years' imprisonment, pursuant to the Habitual Felony Offender Act. He was also ordered to pay a fine of $25,000.

I

The appellant argues that the trial court erred by allowing a juror to serve on the jury after she had indicated that she could not be fair because of her disdain for drug users and that she might tend to side with the State and the prosecution's evidence. However, the record indicates that the appellant never attempted to strike this juror, either for cause or by using one of his peremptory challenges. After the jury was sworn and empaneled, defense counsel made a motion for mistrial based on the prospective juror's statements concerning her biases and partiality. However, as the trial court noted, the appellant had the opportunity to strike this juror and failed to do so. The appellant waived this matter by failing to object. Batson v. State ex rel. Davis, 216 Ala. 275, 113 So. 300 (1927).

II

The appellant argues that the trial court erred by counting one of his strikes against a prospective juror as a peremptory challenge, when the appellant intended it to be a challenge for cause. The record indicates that, upon questioning a prospective juror, the veniremember indicated that he would tend to believe the testimony of a police officer over that of another witness. Defense counsel then attempted to move to strike the prospective juror for cause. The trial court responded that such challenges should be made at the close of the voir dire. Following the voir dire, the appellant failed to make any challenges for cause. When the striking process began, the court indicated that the State would get seven strikes and the defendant would get six. The State took the first strike, following which defense counsel stated, "Judge, we'd like to strike number 25 [the prospective juror in question] for cause." The trial court stated, "The defendant strikes number 25?" The process then continued. The appellant received five additional strikes. Thereafter, the appellant failed to bring to the trial court's attention the claim that he had intended that first strike to be a strike for cause rather than one of his peremptory challenges.

However, following the swearing and empanelling of the jury, the appellant made a motion for mistrial, during which he indicated that he had intended that strike to be a challenge for cause. The trial judge stated that he did not understand it as such and that the appellant had had the opportunity to make any challenges for cause following the voir dire and prior to making the peremptory challenges. This objection to the matter by the appellant was untimely. Cf. Williams v. State, 530 So.2d 881, 884 (Ala.Cr.App.1988), cert. denied 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989) (wherein this court discussed the importance of a timely objection to a Batson violation, noting that the objection should be made before the jury was sworn and the unselected veniremen had been released in order to avoid such difficulties as delay and "sandbagging" and to allow the trial court the opportunity to remedy the error and save the case. Id. at 884.)

III

The appellant argues that the trial court erred in denying his motion for a judgment of acquittal, because, he argues, the State failed to present sufficient evidence to show actual or constructive possession. However, the State presented testimony that the appellant, after seeing the police, jumped out of the car and attempted to flee and that then, just prior to his arrest, he told one of the officers that there were 19 one-pound bags of marijuana in the trunk. Knowledge of the presence of controlled substances may be proved by an appellant's declarations or admissions. Shaneyfelt v. State, 494 So.2d 804, 806 (Ala.Cr.App.1986), quoting Lyons v. State, 455 So.2d 295, 296 (Ala.Cr.App.1984). Although the appellant denied that he made that statement to the officer, witnesses' credibility is a question for the jury. Parrish v. State, 494 So.2d 705, 709 (Ala.Cr.App.1985); Whitlow v. State, 509 So.2d 252, 256 (Ala.Cr.App.1987).

Furthermore, the State presented other circumstantial evidence, testimony concerning the appellant's flight from the car upon seeing the police, as tending to establish his knowledge of the presence of prohibited substances. Cf. Carlisle v. State, 465 So.2d 1205, 1206 (Ala.Cr.App.1985) (recently stolen property found in the back seat of the vehicle the defendant was driving and his flight from the vehicle upon discovery constituted sufficient evidence to submit case to the jury). See also Shaneyfelt v. State, supra, at 806 (defendant's knowledge of presence of narcotics could also be inferred from "the activity in the living room (i.e., moving around, saying 'police') just prior to the officers' entry"). "Flight is a circumstance which the jury may consider in determining guilt. Bighames v. State, 440 So.2d 1231, 1234 (Ala.Cr.App.1983)." Carlisle v. State, supra, at 1206.

The State presented sufficient evidence from which a jury could reasonably conclude that the appellant had the requisite knowledge for a conviction of trafficking in marijuana.

IV

The appellant argues that the trial court erred in allowing the prosecution's forensic expert to testify concerning the weight of the marijuana, because, he says, the prosecution failed to establish a proper predicate concerning the accuracy of the measuring instruments. However, the record indicates that the appellant made no objection to the admission of this evidence at trial; therefore, this issue has not been preserved for appellate review. Wiggins v. State, 513 So.2d 73 (Ala.Cr.App.1987).

V

The appellant argues that the trial court's comment to the jury that the substance found was marijuana, made during the oral charge, was reversible error. However, the appellant failed to object or except to ...

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2 cases
  • Nichols v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 7, 1993
    ...Jackson v. State, 566 So.2d 752, 756 (Ala.Cr.App.1987), cert. denied, 566 So.2d 757 (Ala.1988); see also Terry v. State, 570 So.2d 781, 784 (Ala.Cr.App.1990); Weaver v. State, 437 So.2d 626, 627 (Ala.Cr.App.1983); Wilson v. State, 428 So.2d 197, 201 (Ala.Cr.App.1983). Accord, H. Maddox, Ala......
  • State v. Terry, CR-90-1694
    • United States
    • Alabama Court of Criminal Appeals
    • March 13, 1992
    ...he was sentenced to 25 years in prison. Terry appealed his conviction, and his conviction was affirmed by this court. Terry v. State, 570 So.2d 781 (Ala.Cr.App.1990). On June 3, 1991, Terry filed the present Rule 32 petition, alleging inter alia that he was denied the effective assistance o......

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