Watford v. State, CR-90-1099

Citation611 So.2d 1170
Decision Date30 September 1992
Docket NumberCR-90-1099
PartiesJemmie WATFORD v. STATE.
CourtAlabama Court of Criminal Appeals

Page 1170

611 So.2d 1170
Court of Criminal Appeals of Alabama.
Sept. 30, 1992.
Rehearing Denied, Rule 39(k) motion
denied, and special concurrence modified
Nov. 25, 1992.

Page 1171

Kathleen Nemish, Dothan, for appellant.

James H. Evans, Atty. Gen., and Robert Ward, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was charged in two separate indictments with the unlawful distribution of cocaine, in violation of § 13A-12-211, Code of Alabama 1975, and the unlawful possession of cocaine, in violation of § 13A-12-212, Code of Alabama 1975. The appellant pleaded guilty to the possession charge and was tried and subsequently convicted the following day for unlawful distribution. The appellant was sentenced to 10 years' imprisonment on the distribution conviction and 2 years' imprisonment on the possession conviction, with the sentences to run concurrently. The appellant was ordered to pay a $500.00 fine, $20.00 restitution, and $50.00 to the Victims Compensation Fund.

The appellant argues that the trial court committed reversible error by denying his motion to dismiss the charge of unlawful distribution of a controlled substance on grounds of double jeopardy. More particularly, he argues that he should not have been tried for unlawful distribution because he had pleaded guilty to unlawful possession, which he contends is a lesser included offense of unlawful distribution. He bases his argument upon the assertion that both charges stem from the same transaction.

The record indicates that the undercover officer who made the purchase observed the appellant pull several rocks of cocaine from his left front shirt pocket. The officer then purchased one of these rocks and left the scene. He had been monitored by other officers during the transaction. Within close to one minute of the purchase time, this officer notified the monitoring officers of the appellant's description and a description of his whereabouts and actions. Other officers shortly thereafter approached the appellant and, finding the additional crack cocaine on his person, arrested him for possession of the narcotic. During the appellant's trial concerning the unlawful distribution of the cocaine, the State introduced evidence from the officer as to the time, location, and circumstances of the purchase. The State then ascertained that the officer had called in a description of the appellant and his location. During the cross-examination of this witness, defense counsel elicited testimony that this officer told the "receiving officers," who were listening on the monitor, that the appellant had several pieces of crack cocaine remaining in his pocket. The State thereafter presented the testimony of a monitoring officer who testified that he received information from the purchasing officer concerning the appellant's description and whereabouts and information that he was entering a car and proceeding in a certain route. The officer also testified that the purchasing officer informed him that the appellant had 10 or 11 pieces of crack in his pocket.

The trial court had previously denied the appellant's objection based on double jeopardy and, following the evidence presented, again denied the appellant's motion, stating:

"I think that the--for the purpose of double jeopardy issue that the evidence seems fairly clear that it was the same

Page 1172

collection of controlled substances that the Defendant exhibited to Officer Wheeler. The time factor, the distance factor, lack of opportunity to get other controlled substances and so forth mandates that conclusion. I don't think any other conclusion is possible. Nonetheless, I find that they are distinct offenses, the sale offense and the possessory offense, because it is also I think impossible not to conclude that the actual controlled substance sold to Officer Wheeler was not the very same controlled substance in his pocket after he sold it. I think that conclusion is also impossible to avoid under the facts. That is, that he sold presumably one piece to Officer Wheeler, gave it to him, left, and then was arrested in possession of the remaining pieces, and I find that as a matter of fact. Under those circumstances I find that double jeopardy does not bar the sale offense and I find the Defendant guilty of unlawful distribution of controlled substances."

In this case, the offenses of distribution and possession have neither the identical statutory elements, nor is one a lesser-included offense of the other. See Buice v. State, 574 So.2d 55, 57-58 (Ala.Cr.App.1990) (" 'Possession of marijuana is not a lesser-included offense, but is a co-ordinate offense to the crime, and to a charge, of selling marijuana' "). Thus, there was no violation of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Moreover, factually the two charges concerned different rock cocaine, although the appellant had apparently been in possession of all of this illegal substance when he made the initial sale.

In Ex parte Darby, 516 So.2d 786 (Ala.1987), the Alabama Supreme Court addressed a situation in which the defendant was arrested, after an informant, under police observation, had bought cocaine from him. Two indictments were brought against the defendant, one charging the unlawful sale of the cocaine, and the other charging the unlawful possession of cocaine. However, by footnote, the Alabama Supreme Court stated that the second indictment, which charged "possession," actually charged a violation of § 20-2-80(2) (repealed), which created the felony of trafficking in cocaine. The jury returned its verdict in terms of trafficking. The Alabama Supreme Court, in Darby, defined "trafficking" as " 'to engage in commercial activity: buy and sell: trade; to engage in illegal or disreputable business activity.' " That court based its decision on the grounds that the appellant was convicted of both selling and trafficking in cocaine. The Court held that this violated the constitutional provisions regarding double jeopardy, stating:

"To punish a person for 'regularly selling' and for 'selling' when he has been arrested only once for selling some of what was then in his possession and retaining the rest is clearly to violate the constitutional prohibition against subdividing a criminal act and imposing multiple punishments for it."

Id. at 788. Thus, the Alabama Supreme Court held that the sale...

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