Tucker v. State

• Decision Date: 01 February 1983
• Docket Number: 6 Div. 722
• Citation: 429 So.2d 1165
• Parties: Wayne Edwin TUCKER v. STATE. ,-A.
• Court: Alabama Court of Criminal Appeals

Page 1165

429 So.2d 1165

Wayne Edwin TUCKER v. STATE.

6 Div. 722, 6 Div. 722-A.

Court of Criminal Appeals of Alabama.

Feb. 1, 1983.

Rehearing Denied March 1, 1983.

Certiorari Denied April 22, 1983

Alabama Supreme Court 82-542 and 82-545.

Daniel W. Wainscott, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was charged in two indictments with two separate offenses of selling marijuana in violation of the Alabama Uniform Controlled Substances Act. Alabama Code Section 20-2-70 (1975). He was convicted in each case. Sentence in case number CC-81-064 was ten years' imprisonment and a $25,000 fine. Sentence in case number CC-81-065 was fifteen years' imprisonment.

I

In case number CC-81-064, the defendant was charged with the sale of marijuana to James E. Weiland on June 10, 1981, "while at or near 13th Street N.W. in Fayette, Alabama." Two issues are raised on the appeal of that conviction.

A

It was not error for the trial judge to allow the prosecutor to read the names of other criminal defendants, indicted for drug offenses, from the weekly circuit court docket while qualifying the venire on voir dire. The defendant argues that the prosecutor's use of the docket sheet containing the names of those charged with drug offenses arising out of a three month long drug investigation was prejudicial because it advocated guilt by association.

"(P)arties have the right, within the trial court's sound discretion, to examine jurors on any matter that might tend to affect their verdict." Ex parte Ledbetter, 404 So.2d 731, 732 (Ala.1981). "We will not overturn the trial court's decision on appeal so long as the voir dire conducted by the trial court is capable of giving 'reasonable assurance that prejudice would be discovered if present.' United States v. Delval, 600 F.2d 1098, 1102 (5th Cir.1979)." United States v. Brooks, 670 F.2d 148, 152 (11th Cir.1982).

This issue was also raised in the defendant's second case (CC-81-065). There the trial judge stated his reasons for allowing the question:

"It's very obvious that the reason for asking the question is that some of these people could be related to these people or have knowledge or know them or discussed the case with them and in some way relate that to Mr. Tucker. They were publicized together as being arrested.

"You've had the opportunity to determine if this publicity has, in any way, effected this jury and they have all answered that it did not. The State has the opportunity, just as the defendant does, to inquire into things that might adversely influence the opinion to the State.

"The Court can adversely see where association of some of these other people might do this and the District Attorney was instructed by the Court, and I think he took precautions, not to, in any way, connect these individuals with this case or taint this case."

We find no abuse of the discretion of the trial judge. See Luttrell v. State, 357 So.2d 1018, 1019-20 (Ala.Cr.App.1978) (State properly allowed to inquire if any prospective juror distrusted narcotics agents); Slinker v. State, 342 So.2d 44, 48 (Ala.Cr.App.1977) (State properly allowed to inquire whether any member of venire had ever been a witness against the State).

B

The defendant strenuously argues that the trial judge erred in allowing the State to introduce testimony of other criminal conduct of the defendant to rebut a defense of entrapment. We find that such evidence was properly admitted.

The defense in this case was somewhat unique in that the defendant presented an alibi for the particular date in the indictment and maintained that he never even saw Weiland, the undercover agent, on that day. However, the defendant testified that agents had tried to entrap him into the sale of drugs at other places on other occasions.

The record supports the finding of the trial judge that the defense was that "they (the undercover agents) were constantly around badgering him, soliciting, trying to make him sell them marijuana to the point where they were a nuisance and that he refused. He never engaged in any business with them except on this one occasion (on a date other than that charged in the indictment) when he sold them washing powders." The trial judge also found that the evidence of entrapment was "strong ... all through the record" and that the defendant was "trying to have the best of both" defenses of alibi and entrapment.

The trial judge ruled that it would not be fair to the State to exclude the evidence of other offenses. He found that it would be "grossly unfair" and "would work manifest injustice into the case and the State would be cut off from * * * defending and refuting this very obvious defense that has been injected either directly or by inference in this case." Under the facts and circumstances of this particular case, the ruling of the trial judge was correct and the evidence that the defendant sold drugs on other occasions was properly admitted to rebut the evidence of entrapment despite the fact that the defendant did not claim that he was entrapped as to the particular and specific crime charged.

Moreover, regardless of whether or not the evidence of other offenses was admissible to rebut any defense of entrapment, it was clearly admissible to prove identity, Thomas v. State, 409 So.2d 955 (Ala.Cr.App.1981); C. Gamble, McElroy's Alabama Evidence, Section 69.01(8) (3rd ed. 1977), and to prove that both the now charged crime and the other offenses "were committed in keeping with or pursuant to a single plan, design, scheme or system." McElroy's Section 69.01(6); Annot., 93 A.L.R.2d 1097 (1964). "If the ruling of the trial court is correct for any reason, it will not be reversed." Collier v. State, 413 So.2d 396, 403 (Ala.Cr.App.1981), affirmed, Ex parte Collier, 413 So.2d 403 (Ala.1982).

II

In case number CC-81-065, the defendant presents five issues for review.

A

The defendant's motion to quash the indictment was properly denied for a number of reasons.

The indictment, in pertinent part, charged that the defendant "did on to-wit: June 16, 1981, while behind the City Exxon Service Station in Fayette, ... sell ... marijuana to James E. Weiland." The number "6" in the date had been written over in pen resulting in a number that appeared to be "8".

The district attorney explained this confusion.

"(T)he alleged date has been discussed with the defense counsel on several occasions. The background of the six and the eight is that the indictment was originally typed before the Grand Jury met to read the eighteenth.

"When the testimony before the Grand Jury was such that the specific date was the sixteenth, I corrected that in pen and the date that we charge is the sixteenth, which is what the Grand Jury intended."

The trial judge denied the motion to quash after finding that defense counsel had been present with the defendant at arraignment and had made no objection to the indictment. The judge also found that the defendant was, in fact, aware of the correct date: "The Court would acknowledge that the date, as it appears on the indictment, is not clear, but that the fact has been known to the defendant for some time now and, apparently, the defendant has been made aware of the correct date."

The defendant first objected to the indictment by his motion to quash which was made orally immediately before trial. The defendant was arraigned and pled not guilty. He did not request any extended time for filing any special pleas or motions after arraignment.

Unless a defect in the indictment is associated with an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him, a demurrer, not a motion to quash, is "the normal procedure to raise defects going to the validity of the indictment." Andrews v. State, 344 So.2d 533, 534 (Ala.Cr.App.), cert. denied, 344 So.2d 538 (Ala.1977). "An 'oral demurrer' is by nature a defective procedure that would not under usual circumstances preserve for our review the issue concerning the validity of the indictment." Johnson v. State, 405 So.2d 149, 152 (Ala.Cr.App.1981).

Generally, both a demurrer and a motion to quash must be filed before a plea to the merits of the indictment since a plea to the merits admits the validity of the indictment. Pinkard v. State, 405 So.2d 411, 413 (Ala.Cr.App.1981); Stemple v. State, 352 So.2d 33, 35 (Ala.Cr.App.1977). See also Alabama Code Section 15-15-41 (1975).

Although fatal defects in an indictment cannot be waived, Barbee v. State, 417 So.2d 611, 613 (Ala.Cr.App.1982), time is not always an essential or material element of the offense of selling marijuana. An indictment charging the sale of marijuana is not fatally defective for failing to state the date of the alleged offense. Boswell v. State, 290 Ala. 349, 355, 276 So.2d 592 (1973). Here, the indictment properly charged that the offense was committed "before the findings of this indictment." This was all that was required by Alabama Code Section 15-8-30 (1975).

For all these reasons, but most importantly because the defendant was actually aware of the date of the alleged offense, the trial judge properly denied the motion to quash the indictment.

B

After his motion to quash was denied, the defendant requested a continuance on the ground that there had been "(n)ot publication, as such, but conversation in the community about his previous trial and conviction for selling marijuana" (CC-81-064). That previous trial began on Tuesday, September 22nd and concluded the following day. The defendant's trial in case number CC-81-065 began five days later, on September the 28th, and ended the following day. The defendant did not request a change of venue. Alabama Code Section 15-2-20 (1975).

Mere "conversation in the community" about an earlier conviction does not constitute ground for granting a continuance.

The decision to grant or deny...