Townsend v. State

• Decision Date: 21 December 2001
• Citation: 823 So.2d 717
• Court: Alabama Court of Criminal Appeals
• Parties: Contrail Kirby TOWNSEND v. STATE.

823 So.2d 717

Contrail Kirby TOWNSEND v. STATE.

CR-00-0717.

Court of Criminal Appeals of Alabama.

December 21, 2001.

Jill Gould, Decatur, for appellant.

Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The appellant, Contrail Kirby Townsend, was convicted of trafficking in cocaine, a violation of § 13A-12-231(2)(a), Ala.Code 1975, and of unlawful distribution of marijuana (two counts), a violation of § 13A-12-211(a). For the trafficking conviction, he was sentenced to a term of imprisonment of 20 years and one day and was ordered to pay a mandatory minimum fine of $ 50,000. For each distribution conviction, he was sentenced to an enhanced sentence of 12 years' imprisonment and was fined $ 5,000. The two sentences for the distribution convictions are to run concurrently. For each of his three convictions, Townsend was also ordered to pay $50 to the Crime Victims Compensation Fund; $1,000 pursuant to the Drug Demand Reduction Assessment Act; $100 to the Alabama Forensic Services Trust Fund; and court costs, including attorney fees.

On appeal, Townsend contests only his trafficking conviction. He was convicted for trafficking under § 13A-12-231(2)(a). That section states, in pertinent part, that "[a]ny person who ... is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine ... is guilty of a felony...." The evidence established that, while fleeing on foot from the police, Townsend discarded a bag containing 22.4 grams of cocaine; that, after Townsend was apprehended that same day, a search of his bedroom in his codefendants' residence produced 17.91 grams of cocaine; and that Townsend admitted ownership of the cocaine found in his bedroom. Townsend contends that the trial court erred in allowing the prosecution to aggregate these separate quantities, each weighing less than 28 grams, to meet the 28-gram minimum requirement for trafficking. He argues that he should have been prosecuted for two separate charges of possession, i.e., for two violations of § 13A-12-212(a)(1), unlawful possession of a controlled substance. He proposes that the two amounts were from "separate and remote locations and with no other evidence to connect the two quantities of cocaine to each other." (Appellant's brief, p. 8.)

Although our review of the applicable caselaw indicates that prosecutors do aggregate the amounts of separate stashes of a controlled substance to support a prosecution for trafficking, see, e.g., Stanberry v. State, 813 So.2d 932 (Ala.Crim.App.2000), Alabama appellate courts have not squarely addressed this issue. In our consideration of this issue, we have surveyed other jurisdictions' treatment of the question. In Commonwealth v. Ortiz, 431 Mass. 134, 725 N.E.2d 1030 (2000), the defendant and his accomplice were found to be in possession of 135.1 grams of heroin when they were arrested and, later that day, pursuant to the defendant's directions, 98.9 grams were seized at a residence. He was convicted of trafficking in heroin in an amount of 200 grams or more. The court addressed the issue, as follows:¹

"The defendant argues that the Commonwealth's evidence was insufficient to warrant the ... conviction because the prosecution had aggregated the amounts found in two `stashes' of heroin at different locations to arrive at 200 grams or more...."

"... The defendant claims that he was entitled to a required finding of not guilty on the indictment charging him with trafficking in 200 or more grams of heroin of May 8, 1996, because the Commonwealth's evidence was insufficient as matter of law.... [H]e claims that the heroin he possessed at each location ... constituted separate quantities that were intended for different purposes, and the Commonwealth was not, therefore, permitted to combine the two quantities in one possession charge. The defendant bases his argument that aggregation was impermissible on what was expressed in Commonwealth v. Diaz, 383 Mass. 73, 82-85, 417 N.E.2d 950 (1981). We stated that our drug statutes do not describe the `offense of maintaining a drug business, which might be proved by a number of acts of possession and sale; rather the statutes denounce particular acts stated disjunctively.' Id. at 84, 417 N.E.2d 950. The defendant reasons that, if according to the Diaz case, the crime of possession with intent to distribute heroin involves one specific act or transaction, then, in the absence of evidence that two amounts of heroin are part of the same act or transaction, the Commonwealth may not aggregate the two amounts in order to convict him of a more serious offense. The defendant concludes that such evidence was lacking here and the Commonwealth failed to satisfy its burden of proving that the two amounts seized from him on May 8, 1996, were part of the same transaction.4

"We recently stated in Commonwealth v. Rabb, 431 Mass. 123, 130, 725 N.E.2d 1036 (2000), that separate prosecutions for possession of a controlled substance under [Mass. Gen. Laws] c. 94C, § 32E, do not offend double jeopardy principles, as long as the amount of the specific controlled substance supporting each conviction constitutes a `separate item' that is sufficiently differentiated by time, location, or intended purpose. Nothing that was stated in Rabb, supra, or in Diaz, supra, however, precludes a prosecutor from combining two quantities of a specified controlled substance possessed by a defendant at different locations in order to prosecute him on a more serious offense under G.L. c. 94C, § 32E. General Laws c. 94C, § 32E(c), has no language prohibiting a prosecutor from aggregating separate supplies of heroin possessed by a defendant at one time to constitute a single offense. The procedure of aggregating separate quantities of a specific controlled substance to bring one criminal charge is frequently used, see, e.g., Commonwealth v. Cuffie, 414 Mass. 632, 638-639, 609 N.E.2d 437 (1993); Commonwealth v. Adames, 41 Mass.App.Ct. 14, 15-16, 668 N.E.2d 848 (1996); Commonwealth v. Rivera, 40 Mass.App.Ct. 308, 312-313, 664 N.E.2d 451 (1996)....

"The defendant's contention that the Commonwealth is required to prove that the two quantities of heroin came from the same supply, in order to link them for purposes of one prosecution, is incorrect. Whether multiple quantities of a certain controlled substance come from the same supply is, generally, irrelevant to the question whether a prosecutor may combine the amounts under one indictment.6 ...

"We turn now to what the [fact-finder] would have been warranted in finding on the evidence here. The defendant had agreed to sell Agent Russell 150 grams of heroin, but arrived at the Westgate Mall with 135.1 grams, less than the promised amount. In response to Sergeant O'Reilly's inquiry, the defendant stated that the rest of his heroin, comprising about one hundred grams, could be found at [the residence], where the police located 98.9 grams of heroin exactly where the defendant had indicated. The circumstances surrounding how this heroin was found, together with the seizure of drug paraphernalia found with it, permitted an inference that the defendant had constructive possession of this heroin, and that he had intended to distribute this heroin as well. We conclude that the defendant was properly prosecuted on this single trafficking indictment, and that the [fact-finder] could conclude beyond a reasonable doubt that the defendant possessed over 200 grams of heroin with intent to distribute it. The defendant's motion for a required finding of not guilty was properly denied.

"4The defendant also suggests that his double jeopardy rights were implicated when the Commonwealth prosecuted him with one violation of the statute rather than two separate violations. Double jeopardy issues arise in situations where a defendant has multiple convictions of violating related statutory provisions based on the same conduct, see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), or where a defendant is subjected to successive prosecutions for the same offense. See Rashad v. Burt, 108 F.3d 677, 679-680 (6th Cir. 1997).... The circumstances of this case do not raise issues of double jeopardy. Cf. Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036 (2000).

"6Evidence that a quantity of a controlled substance found in a defendant's possession comes from a certain supply will continue to be relevant to prove a defendant's constructive possession of the controlled substance in the supply. Evidence that both quantities of heroin came from the same supply was not necessary, in this case, to prove the defendant's constructive possession of the heroin in the house ..., because that heroin was linked to the defendant by his own words, when he told the police where they could find the rest of the heroin. We note ... that the defendant does not argue on appeal that he lacked constructive possession of the heroin in the house."

431 Mass. at 135, 137-40, 725 N.E.2d at 1031, 1033-34 (some citations omitted; n. 5 omitted).

In disposing of Townsend's contention, we have also considered the rationale expressed in Hite v. State, 206 Ga.App. 245, 424 S.E.2d 885 (1992). There, neither the cocaine that was seized pursuant to a search of the truck driven by the defendant nor the cocaine subsequently found in the defendant's jacket pocket in his residence pursuant to his direction met the statutory minimum amount of 28 grams to constitute trafficking, but when the amounts were combined, they constituted an amount sufficient for trafficking. In holding that the defendant's conviction for trafficking in cocaine, under a statute virtually identical to Alabama's, was based on sufficient evidence, the court stated:

"Appellant argues that the two seizures cannot be combined and that ... his indictment for trafficking should have been dismissed and he

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