Walker v. State

• Decision Date: 18 April 1978
• Docket Number: 6 Div. 514
• Citation: 358 So.2d 800
• Parties: Claudia Mae WALKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 800

358 So.2d 800

Claudia Mae WALKER v. STATE.

6 Div. 514.

Court of Criminal Appeals of Alabama.

April 18, 1978.

Slade G. Watson and Jack Clarke, of Henley & Clarke, Northport, for appellant.

William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Retired Circuit Judge.

Prior to the submission of the appeal in instant case, an appeal by the same appellant in another case (Walker v. State, 6 Div. 168) had been submitted. The results in No. 168 have been an affirmance, January 4, 1977; a reversal by the Supreme Court of Alabama on September 23, 1977, and an affirmance after remandment on December 6, 1977.

In No. 168 defendant was charged with possession of heroin, found guilty, and assessed a fine of fifteen hundred dollars to which the court added imprisonment for ten years and one day as additional punishment.

In the case now under review, defendant was convicted under Count Two of an indictment which charged that she

". . . with intent to injure or defraud, did obtain or attempt to obtain a controlled substance, to-wit: Preludin, which substance contains Phenmetrazine, by fraud, deceit, misrepresentation or subterfuge, or by the use of a false name . . ."

A jury fixed her punishment at a fine of five thousand dollars to which the court added seven years imprisonment in the penitentiary.

Tammie Davis, an employee of Big B Drug Store in Northport, Tuscaloosa County, Alabama, testified that while she was helping the pharmacist on October 4, 1976 defendant gave her a prescription for "Preludin-75 mg." purportedly signed by Dr. Joe P. Smith, a physician in Eutaw, Alabama. After the prescription was filled, she gave the drug to defendant; she had seen defendant approximately three times previously.

Ron Nunnally, a pharmacist and supervisor at Big B Drug Store, testified that he was familiar with the signature of Dr. Smith, and on October 7, 1976, while filling prescriptions for the week, he noticed that the signature of Dr. Smith was not the one he had seen when working in Eutaw. He notified Larry Massey of the West Alabama Narcotics Squad and gave the particular prescription to Mr. Massey. Mr. Nunnally also testified that Preludin is a Schedule II drug. ¹

Dr. Joe P. Smith testified that he had seen defendant one time in his office in September of 1976 where she sought a prescription. At that time defendant was seated in a room near a desk on which there was a prescription pad. He did not give defendant a prescription; he said the prescription made the basis of Count Two was written on one of his prescription pad forms but was not written or signed by him.

Mr. Tom Roberts, previously employed at Big B Drug Store in Northport, testified that he filled the particular prescription.

Larry Massey, an employee of the Tuscaloosa County Sheriff's Department assigned to the West Alabama Narcotics Squad, testified that he received a phone call from Big B Drug Store in Northport, Alabama, responded to the call, sent the prescription to the Alabama Bureau of Investigation Department, the I.D. Department, and requested that it be checked for fingerprints.

Edgar Ronald Smith, an employee of the Alabama Bureau of Investigation, testified that he is a latent fingerprint examiner; that he had had considerable experience in fingerprinting. He testified that three latent prints of value were found on the prescription that was otherwise identified as the prescription made the basis of Count Two of the indictment. He said that one latent print on the back side of the prescription was made by the same finger which made the ink impression in the right thumb block of a fingerprint card of Claudia Mae Walker. He further said he had charted twelve points of comparison and had found seventeen more between the latent prints lifted from the prescription and those on the "fingerprint card" of defendant hereinafter discussed.

Defendant denied any and all connection with the prescription purportedly signed by Dr. Smith and filled by Big B Drug Store, according to the testimony of the State. She said that her physician was Dr. William F. Hawkins, a physician in Tuscaloosa County, who had been treating her several years for a weight problem. He had prescribed Preludin-75 monthly to be taken by her daily. He gave her a prescription for a one month supply on October 1, 1976. She took the prescription to the Big B Drug Store in Northport and handed it to Tammie Davis, but Tammie told her that they "did not have any of them." Defendant said she then left and went to Harco Drug where the prescription was filled.

Dr. William F. Hawkins corroborated the testimony of defendant in testifying that he had treated her for several years for a weight problem; he had prescribed Preludin-75 by prescribing a month's supply each month. His last prescription for her was October 1, 1976.

We cannot bridge or close the rift between the material testimony of the State and that of defendant. The conflict poses a problem that a jury alone has the legal function to decide. Neither party contends otherwise.

At the outset we are met with a disagreement between the parties as to what has been held thus far in the other case, 6 Div. 168. The importance of the problem is accentuated by the fact that in instant case the "fingerprint card" of defendant, which was used for comparison purposes with the latent fingerprints allegedly lifted from the prescription, was made in October 1975 at the time defendant was arrested for the possession of heroin in 6 Div. 168. During the trial of the case now under review, defendant objected to the use of such "fingerprint card" on the ground that there was no probable cause for her arrest at the time and, in the absence of probable cause for her arrest, the use of a "fingerprint card" processed at the time would constitute a violation of the Fourth Amendment to the Constitution of the United States as enlarged to include prosecutions in state courts by the Fourteenth Amendment to the Constitution of the United States.

We agree with appellee that it has been definitely decided in 6 Div. 168 that there was probable cause for believing that defendant was in possession of heroin at the time, and no warrant was necessary to effectuate a valid and constitutional search of the box that was in her possession and which contained the particular contraband.

Appellant urges that the trial court should have recused himself as the trial judge in the case.

The indictment in this case was returned on November 12, 1976; she was arraigned and pleaded not guilty on December 29, 1976; her case was set for trial on April 12, 1977. On that day defendant filed a MOTION FOR TRIAL JUDGE TO RECUSE HIMSELF. At the time the motion was filed, defendant's counsel invited the court's attention to the fact that he had written a letter to the court dated March 24, 1977, as to which he commented, inter alia, "In that letter my client has requested me, that it is her felling (sic) that she would not get a fair and impartial trial as you are the Judge in this case. Since you did prosecute her over a year ago, and I ask you on behalf of my client, she remembers you in that case. And since you did prosecute her in that case, she feels that she could not get a fair and impartial trial, that was in the letter which was sent to you a good while ago, which you are the subject. And I make this request to you on the behalf of my defendant in this case in which she is charged with forgery of prescription to contain a controlled substance by fraud, and also which she is charged with the obtaining of a controlled substance by fraud." Out of the presence and hearing of the jury, the court proceeded to hear defendant on the subject, including the testimony of defendant and her attorney.

We search the record with difficulty in an effort to find any specific charge of disqualification of the trial judge. The closest thereto is to be found in the following:

"3. That your Honor, Judge Claude Harris, before becoming a Circuit Judge, was an Assistant District Attorney of Tuscaloosa County, Alabama; that while an Assistant District Attorney, Judge Harris prosecuted your Movant in a case charging possession of heroin, and secured a conviction which is now on appeal and pending in the Supreme Court of Alabama; that in said case, due to the insistance of Judge Harris, Movant was given ten (10) years and One (1) day by the then presiding judge, which prevented her from being considered for probation, even though this was her first offense of this nature.

"4. That during the trial of said prior cause, Judge Harris adopted a strong adversary stance and prosecuted your Movant very vigorously.

"Further, Judge Harris made statements about Movant's father and friends participating in narcotics traffic in this county, which Movant alleges demonstrates prejudice and bias against her by Judge Harris that is so deep and uncompromising that it would be improper for him to impartially preside as Trial Judge in the case pending before him."

At times during the hearing on the motion to recuse, the inquiry was raised as to whether Judge Harris had participated in any way in the prosecution of the case now under review, but the evidence was conclusive that he did not. Judge Harris had left the office of District Attorney on January 31, 1976, approximately eight months before the incident giving rise to the case now before us. Although there were oblique references to "prejudice and bias against her by Judge Harris," there is no evidence whatever to support any such claim. In as favorable a light to appellant as possible the hearing disclosed merely that Judge Harris, while Assistant District Attorney, prosecuted appellant for another drug related charge, that he did so vigorously, as he should have done, and that his efforts were successful, which certainly is not to his discredit.

The Canons of Judicial Ethics adopted February...