Van Nostrand v. State
| Decision Date | 01 October 1975 |
| Docket Number | 8 Div. 637 |
| Citation | 56 Ala.App. 141,319 So.2d 760 |
| Parties | Richard VAN NOSTRAND v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. R. Brooks, Jr., Huntsville, for appellant.
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
Appellant was indicted for the possession of 70 pounds of marihuana. He was also indicted for maintaining a dwelling house, located at Route 5, Huntsville, Alabama, where persons resorted to for the purpose of using controlled substances. At arraignment, attended by counsel, he pleaded not guilty. The jury returned a verdict finding the defendant guilty of possession of marihuana for personal use. The trial court sentenced appellant to one year in the Madison County jail.
The evidence is uncontradicted that appellant, his wife and one William James Hillenbrand jointly rented the house located at the above address. It is further uncontradicted that on July 6, 1973, the officers went to this house armed with a search warrant and made a thorough search of the house. Upon arriving at the house they saw appellant walk off the porch and go to a blue Volkswagen. They saw appellant's wife at the front door. The officers identified themselves by showing their badges and they told appellant they had a search warrant to search the house. Appellant walked with officers to the house and his wife slammed the door and went back in the house. One of the officers went after her and she pointed a pistol directly on this officer. The officer took the pistol out of her hand and carried her into the living room.
The officers found the Southwest bedroom door locked. They knocked on the door but got no response. They forced the door open and found Hillenbrand in bed and saw his personal effects in this room. They conducted a search of this room and found one large plastic trash bag, approximately 20 gallon size, with ten packages inside, weighing about two pounds each, containing green vegetable material believed to be marihuana. They found another large trash bag containing nine packages weighing approximately two pounds each, enclosing a green vegetable material believed to be marihuana. They found four large grocery bags containing green vegetable material, weighing about five pounds each, believed to be marihuana. In this same room they found a set of scales, a Browning automatic weapon, a Winchester pump shot gun, and six roaches with green substances believed to be marihuana.
In the Southeast bedroom, the one occupied by appellant and his wife, they found a few roach clips, two small plastic bags containing green vegetable material believed to be marihuana, a small tin can, about two inches high, wigh vegetable material believed to be marihuana, a glass jar containing roaches believed to be marihuana and a cigarette roller.
In the middle bedroom the officers found one roach containing vegetable material believed to be marihuana. In the middle east bedroom they found one roach containing vegetable matter believed to be marihuana and an ashtray on a chest. They also found three more roaches in a paper bag on the floor in front of the chest. In the living room they found one roach in the ashtray containing vegetable matter believed to be marihuana and another one in an ashtray on top of the television set.
Deputy Sheriff Pat Edwards testified that he was employed by the Madison County Sheriff's Department and that on July 5, 1973, he participated in the 'stake out' of the location on Smith Road in Madison County. He stated that he viewed the house occupied by appellant and his wife and Hillenbrand and that at approximately 11:20 on the night of July 5, a red pickup truck drove into the driveway of this residence. He saw two occupants of the truck carry two large plastic bags to the porch. A girl opened the door and a male having long blonde hair pulled the bags in the house and the lights went off in the house again. This witness stated that Hillenbrand has long blonde hair. Edwards was the officer who executed the search warrant. He said they found about 58 pounds of marihuana in the room occupied by Hillenbrand.
Mr. Robert M. Patterson testified that he was employed by the State of Alabama Department of Public Safety, Bureau of Investigation, Narcotics Unit. He participated in the search on the morning of July 6, 1973. He stated that in the Southeast bedroom they found two plastic bags of marihuana. He also saw several grocery type bags of marihuana in the Southwest bedroom.
After the search the officer arrested appellant, his wife and Hillenbrand and gave each of them the Miranda rights and warnings.
Mr. John Kilbourne testified that he was employed by the State Department of Toxicology and Criminal Investigation and had been so employed for six years. After stating his education and background experience, he testified that he received from Officer Allen Adair one brown bag containing plant material, one manila envelope containing two plastic bags containing plant material, one plastic bag containing plant material and one manila envelope containing a metal tin can which contained plant material. He testified that their evidence was turned over to him on July 9, 1973, and he put it in a locker to which he had the only key; that on September 19, 1973, he removed this material from the locker and performed a microscopic examination and a microchemical test to determine the contents. He stated he had performed many thousands of such tests. He determined the contents of the evidence submitted to him to be marihuana. There was other testimony that this evidence came from the Southeast bedroom occupied by appellant and his wife. This evidence was subsequently introduced during the trial.
At the conclusion of the state's case appellant made a motion to exclude the state's evidence. This motion was overruled.
Hillenbrand was indicted, separately, for the same offenses as appellant. He made application to be treated as a youthful offender. His application was granted and he pleaded guilty to possessing the marihuana found in his room. He was convicted of being a youthful offender and applied for probation. His application for probation had not been decided prior to appellant's trial. He was out on bond and testified at appellant's trial.
According to his testimony all of the marijuana found in his room belonged to him and that appellant had no interest in it.
On cross-examination he testified that he and a man in a pickup truck brought the marihuana to this house between eleven and twelve o'clock on the night of July 5, 1973. He admitted that appellant and his wife knew he was going to bring the marihuana there that night. That appellant opened the door, but he was vague as to whether appellant helped him carry the marihuana to his room.
From the record:
'Q. If it was dragged back there, who helped you drag it back into your room?
A I am not really sure. I couldn't swear to who helped me.
Q Didn't Ricky help you put it back there?
A I couldn't say for sure. I don't believe so.
Q But he could have?
A He could have, yes. I don't know that he did.
Q And there was other marijuana in the house at that time also, wasn't there?
A Yes.
Q In fact, there was a little bit of marijuana or some quantity of...
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...of marijuana for personal use. Lee v. State, Ala.Cr.App. 350 So.2d 743; Butts v. State, Ala.Cr.App. 346 So.2d 497; Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760. An indictment charging possession of marijuana, also, informs a defendant of the nature of the charges against him and fa......
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...of marijuana for personal use. Lee v. State, Ala.Cr.App., 350 So.2d 743; Butts v. State, Ala.Cr.App., 346 So.2d 497; Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760. An indictment charging possession of marijuana, also, informs a defendant of the nature of the charges against him and ......
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