Tillis v. State
| Citation | 469 So.2d 1367 |
| Decision Date | 12 February 1985 |
| Docket Number | 4 Div. 372 |
| Parties | Rubert TILLIS, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Michael S. Jazwinski, Prestwood, Prestwood, Sansom & Jazwinski, Andalusia, for appellant.
Charles A. Graddick, Atty. Gen., and Bernard B. Carr, Asst. Atty. Gen., for appellee.
Rubert "Pike" Tillis was indicted for trafficking in marijuana in violation of § 20-2-80, Code of Alabama 1975. The jury found him "guilty as charged" and following a sentencing hearing the trial court set punishment at eight years in the penitentiary and fined the appellant $25,000.00.
Bill Shaw testified that he was the Chief Deputy with the Covington County Sheriff's Department. Pursuant to a conversation with a confidential informant he went to the Hideaway Club, located in Opp, Alabama, on December 21, 1983. Upon his arrival at the club, he approached the appellant and informed him that he (Shaw) "had received information from an informant about his having controlled substances illegally." (R. 6). He asked the appellant for permission to search his residence. He read this appellant a permission to search form, allowed the appellant to read over the form, and after the appellant signed the form, Shaw witnessed this, along with two other officers. Shaw stated that, before the appellant gave his consent to the search, he was in no way threatened, coerced, induced or intimidated by the officers, nor was he offered any reward or hope of reward in order to procure consent. Appellant was informed that he had the right to refuse the search of his residence.
Shaw testified that he had known appellant for approximately 10 years and had had conversations with him on many occasions. Shaw was not aware that appellant had a hearing problem and had never seen appellant wearing a hearing aid. He further stated that in the past appellant had responded intelligently to conversation with him, and Shaw was sure appellant understood the consent form on this occasion.
Deputy Shaw, appellant, investigator Jerry Newton, and A.B.I. narcotics agent Randy Mobley went to appellant's residence. Upon entering the home, the appellant went into a bedroom, "slid a bed over and picked up a brown paper bag and opened it." (R. 15). When appellant handed Shaw the paper bag he stated "that's all of it". Appellant was asked if, in fact, that was true, but Shaw did not receive an answer to this question. At this time Shaw turned to a closet in this bedroom and opened it up to find a large burlap sack on the floor. He further stated that he could smell the odor of marijuana in the closet.
Jerry Newton testified that he was employed as an investigator for the Covington County Sheriff's Department. On December 21, 1983, he went to the Hideaway Club with Bill Shaw and other officers. Once inside the club, they located the appellant and Newton read the appellant his Miranda rights. Newton stated that appellant appeared to hear and understand his rights and at no time did appellant indicate that he had a hearing problem. After Newton read appellant his "rights" Deputy Shaw asked appellant for consent to search appellant's home. Shaw then read a consent form to appellant and handed the form to the appellant. Appellant "stood there and looked at it and signed it." (R. 32). Newton also signed the form as a witness and observed Agent Mobley sign the form.
After appellant signed the consent to search form, appellant and the officers proceeded to appellant's residence. Upon reaching appellant's residence they entered the home and Tillis took them into a bedroom and took "some marijuana from under a bed and said this is all I have." (R. 35). At this time the officers began a search of the appellant's home and found marijuana in a number of places. The officers found one marijuana cigarette in the master bedroom. Three bags of marijuana, sixteen marijuana cigarettes, some currency and a .32 caliber H & R pistol were found in the kitchen cabinets. Five paper bags of marijuana were found in a burlap sack and one plastic bag of marijuana was found between mattresses located in the first bedroom to which appellant took them. Fifty marijuana cigarettes were found on the dining room table, and two plastic bags of marijuana in the closet of a third bedroom. Newton identified each of the above items and stated that he took possession of this evidence at the scene. He subsequently transported these items to the State lab in Enterprise to have them analyzed and he picked them up from the lab on February 8, 1984. The evidence was in his possession from February 8, 1984 until the time of trial.
Joseph Saloom testified that he was employed as a criminalist for the Enterprise Division of the Alabama Department of Forensic Sciences. He analyzed the substances received from Jerry Newton on January 12, 1984, and stated that the exhibits in evidence were the ones turned over to him for analysis. His analysis revealed each exhibit containing plant material was marijuana. The total weight of the marijuana turned over to him for analysis was 5.17 pounds. He turned this evidence back over to Jerry Newton on February 8, 1984.
During cross-examination, Saloom testified that he was aware of medicinal purposes of marijuana. He further stated that he was aware that marijuana could be used to alleviate pain in persons suffering from glaucoma.
The appellant testified that he had a hearing problem and was supposed to wear a hearing aid. He stated that he had glaucoma in both eyes, which condition gives him pain. He further stated that a doctor in Pensacola, Florida, told him he could smoke marijuana to alleviate the pain glaucoma caused him.
The appellant stated that on December 21, 1983, he was at the Hideaway Club. Officers Shaw, Newton and Mobley came into the club and he signed a paper given to him. He stated that he did not object to going to his house with the officers and upon arrival at his home he took some marijuana out of a bedroom and gave it to Deputy Shaw. He stated that this was all the marijuana he had in his home and he kept it for personal use. Appellant denied ownership of any more marijuana found in this home but stated that he lived in the house alone.
Charlie Tillis testified that the appellant was his brother. He stated that he knew the appellant had glaucoma and that he had seen the appellant smoke marijuana. He further testified that the appellant told him he was smoking the marijuana for his glaucoma.
The appellant contends that the trial court erred in overruling his objection to the testimony of Deputy Shaw. He specifically argues that Shaw's testimony was hearsay.
From the record: (R. 4-7).
The above quoted colloquy clearly indicates that the statement Shaw made to the appellant is not hearsay. This court has stated on numerous occasions that the hearsay rule applies only to a statement offered for the truth of its contents. See Dent v. State, 423 So.2d 327 (Ala.Crim.App.1982); Epps v. State, 408 So.2d 562 (Ala.Crim.App.1981); Crews v. State, 375 So.2d 1291 (Ala.Crim.App.1979). Shaw's testimony concerning what he stated to the appellant was used to explain the reason Shaw sought to search the appellant's residence and his...
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