Tidwell v. State
| Decision Date | 12 August 1986 |
| Docket Number | 3 Div. 281 |
| Citation | 496 So.2d 109 |
| Parties | Rockford D. TIDWELL v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Cliff Heard of Jones, Murray & Stewart, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Victor Jackson, Asst. Atty. Gen., for State.
Rockford D. Tidwell was convicted for trafficking in marijuana and sentenced to ten years' imprisonment and fined $25,000.
The marijuana was seized on September 18, 1985. Arnold Mitchell, a forensic laboratory analyst for the Department of Forensic Sciences, weighed the marijuana on September 27, 1984, and reported a total gross weight 1192.2 grams. On February 11, 1985, at the defendant's request, he weighed the marijuana a second time and reported a weight of 1015 grams.
The trial judge granted the State's motion in limine prohibiting the defendant from making any reference to the second weighing. Relying on People v. Newell, 77 Ill.App.3d 577, 33 Ill.Dec. 66, 396 N.E.2d 191 (1979), "as well as other judgments to the same effect in trafficking cases tried in this circuit," the judge held that "the weight of the marijuana that is determinative is the weight at the time of the commission of the offense." We agree.
At trial, the judge refused to allow defense counsel to cross-examine Mr. Mitchell on the second weighing. At a hearing held outside the jury's presence, Mitchell explained the different weight of the marijuana on the first and second weighings as due to "[l]oss in moisture, sir, or drying, period."
The defendant contends that he should have been permitted to cross-examine the expert on the results of the two weighings as relevant to show (a) the accuracy of the instruments used, (b) Mr. Mitchell's credibility as an expert, and (c) the actual weight of the marijuana, which was an essential element of the offense charged. With regard to factor (c), the defendant argues that if the five percent margin for error acknowledged by Mr. Mitchell as "weight for extraneous material" is considered, the actual weight of the marijuana at the second weighing was 964.25 grams which was not in excess of the one kilo (1000 grams) required in order to make out a prima facie case of trafficking. § 20-2-80(1)(a).
In People v. Newell, 77 Ill.App.3d 577, 33 Ill.Dec. 66, 68, 396 N.E.2d 291, 293 (1979), it was stated:
In Dickerson v. State, 414 So.2d 998, 1002 (Ala.Cr.App.1982), this court reached a similar conclusion with regard to the specific holding in Newell, and held that the accused had the burden of going forward with evidence that the marijuana contained parts of the marijuana plant excluded under the statutory definition of marijuana.
We agree with Newell that the State may determine the weight of the contraband based upon its condition at the time it was seized. The trafficking statute prohibits the possession of more than one kilo or 2.2 pounds of marijuana. § 20-2-80. It is concerned with the weight of marijuana possessed by the accused, not with the weight of the marijuana some time after it has been seized and removed from the accused's possession.
An expert witness "may be impeached by a showing of a former statement inconsistent with his present testimony." C. Gamble, McElroy's Alabama Evidence § 142.01(1) (3rd ed. 1977). "It is generally held in this country that an expert may be cross-examined as to whether he has made mistakes in other specific instances that would tend to show a lack of expertness." McElroy's § 142.01(4). "The trial judge has a substantial amount of discretion as to the questions he will allow to be propounded to an expert witness on cross-examination." McElroy's § 142.01(5).
The trial judge found that the evidence of the second weighing would not be a matter of impeachment. The judge also found, and we agree, that evidence that the marijuana weighed 177.2 grams less when it was weighed a second time, which was 137 days after it had been weighed the first time, did not tend to show that the expert was inaccurate or mistaken in his weighing. In questioning Mr. Mitchell outside the jury's presence, defense counsel made no showing that the conflicting weights were the result of inaccurate scales or improper weighing procedures. In fact, defense counsel argued that it was the weight of the "dried" marijuana which should be considered in meeting the "statutory threshold for trafficking." The trial judge found that "there has been no offer at this time that the Legislature intended for this to be dried bricks of marijuana."
Lauran Wilmesherr testified for the defense. She was a consultant for Forensic and Security Consultants Corporation out of Tallahassee, Florida, a consultant Mass spectroscopist with the Mississippi State Board of Health, and a forensic scientist. Through her testimony, the defense attempted to impeach Mr. Mitchell's expert opinion that the plant material he examined was marijuana. She identified the proper procedures for weighing marijuana and the methods of checking the weighing instruments for accuracy and precision. She stated that a weighing instrument can become inaccurate with frequent use if it is not "calibrated with regularity and frequency." She gave her opinion that the instruments used to weigh the marijuana should have been calibrated weekly, if not more often. The State's evidence established that the instruments were calibrated only twice monthly. The defendant argues that the accuracy of the instruments was not shown and a proper predicate was not established for the testimony regarding the weight of the marijuana.
The accuracy of the weighing device was proved. See Campbell v. State, 479 So.2d 1294, 1298, aff'd, Ex parte Campbell, 479 So.2d 1299 (Ala.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 573, 88 L.Ed.2d 557 (1985): "Perhaps the State should have shown by some witness whether the scales were accurate, but we are unwilling to conclude that merely because the witness was unable to say the scales were accurate 'to within ... a gram,' the scales were so inaccurate as to show that the material placed on them was three times weightier than it actually was." Although Mr. Mitchell could not state the "last time" the scales were checked for accuracy, he testified that the scales were accurate, that they were checked "once a month, frequently more sometimes," that "we make sure that the scales are functioning properly," and that in his opinion, the scales were accurate based on what he "had done" and his "observations." The trial judge properly ruled that the question of the accuracy of the scales affected the weight of the expert testimony and not its admissibility.
The fact that the defense expert gave her opinion that more frequent calibration and the keeping of calibration records for a weighing device are necessary does not prove the inaccuracy of the device. Mr. Mitchell's testimony supplied a sufficient predicate for evidence of the weight of the marijuana. See Boyd v. City of Montgomery, 472 So.2d 694, 699 (Ala.Cr.App.1985) ().
Over the defendant's objection that Investigator Charles West had not been properly qualified to give an opinion as an expert, the trial judge properly ruled that he would allow West's testimony as a lay opinion on the weight of the unstripped marijuana plant stalks.
The error, if any, in admitting Investigator West's testimony as a layman was harmless in view of the fact that he was qualified and could have been treated as an expert witness. West testified that he had fifteen years' experience in law enforcement and five years' experience in narcotics investigation. He stated that he had seen between two hundred and four hundred plots of growing marijuana, had cut, stripped, and weighed stalks of marijuana a hundred times, and was familiar with the amount of plant material that would constitute one pound. "It is clear to this court that [West] was an experienced officer in the field of narcotics and qualified to give his opinion as one 'who has seen or studied marijuana'," Fleming v. State, 470 So.2d 1343, 1347 (Ala.Cr.App.1985), cert. denied, 474 U.S. 857, 106 S.Ct. 164, 88 L.Ed.2d 136 (1985) (quoting Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758 (1971)).
Furthermore, the weight to which Investigator West testified was not the weight upon which defendant's conviction rested. West gave his opinion regarding the weight of the untested marijuana which included parts of the plants which were not delivered to the toxicology laboratory. Thus, even if West's testimony was improperly admitted it was harmless because the critical weight, in excess of 2.2 pounds, was established by other testimony. A.R.A.P. 45.
The marijuana seized from defendant's property was placed in a pickup truck which was later loaded with plant material seized from two other unrelated plots and driven to a temporary storage facility. The defendant claims that because of the possibility that some of the other plant material was tangled or intertwined with the material seized from his plot the State failed to show an unbroken chain of custody of the marijuana.
Investigator West testified that he placed a stepladder between the plant material loaded at the defendant's residence and the plants...
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