Watley v. State
| Decision Date | 01 December 1989 |
| Docket Number | 4 Div. 274 |
| Parties | James Mack WATLEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Francis M. James III of James & James, Andalusia, for appellant.
Don Siegelman, Atty. Gen., and Patrick L. Roberts, Asst. Atty. Gen., for appellee.
James Mack Watley was convicted of unlawful possession of marihuana, was sentenced to five years' imprisonment, and was fined $2000. He raises six issues on this appeal from that conviction. Because his conviction must be reversed for failure of the indictment to charge an offense, we address only those matters likely to recur at another trial.
The indictment charged that the defendant "did on to-wit, May 1, 1988, while at or near Covington County, Alabama, unlawfully possess marijuana, a controlled substance, contrary to and in violation of Title 13A-12-213 of the Code of Alabama, 1975...." This indictment did not state an offense under the Drug Crimes Amendments Act of 1987.
Under prior law, the indictment would have charged the offense of felony possession of marihuana. Ala.Code 1975, § 20-2-70(a) (repealed by Act No. 87-603, § 12, 1987 Ala. Acts 1047). That section provided:
"Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.00; provided, that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction for the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more than $1,000.00; provided further, that the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this subsection." (Emphasis added.)
The prior statute "ma[d]e possession of marijuana (or any other controlled drug or substance) a felony." Roberts v. State, 349 So.2d 89, 92 (Ala.Cr.App.), cert. denied, Ex parte Roberts, 349 So.2d 94 (Ala.1977). An indictment pursuant to § 20-2-70(a) was not required to allege that the accused's possession was not for personal use because, under that section, there was a presumption that the possession was for other than personal use. State v. Calhoun, 502 So.2d 795, 799-800 (Ala.Cr.App.), aff'd in part, rev'd on other grounds and , Ex parte State, 502 So.2d 808 (Ala.1986).
Under § 20-2-70(a), the showing of possession for personal use was a defensive matter and the burden of proving this matter was upon the defendant. Lee v. State, 350 So.2d 743, 746 (Ala.Cr.App.1977); Roberts v. State, 349 So.2d 89, 93 (Ala.Cr.App.), cert. denied, Ex parte Roberts, 349 So.2d 94 (Ala.1977).
The foregoing rules regarding pleading and proof under § 20-2-70(a) were derived by applying well-established principles of statutory construction to the Controlled Substances Act. See, e.g., Hall v. State, 291 Ala. 397, 400, 281 So.2d 662, 665 (1973). The conduct proscribed in the enacting clause of that act and thus the definition of the offense under § 20-2-70(a), was "possession of controlled substances." That conduct was all the State needed to allege in order to charge felony possession of marihuana in an indictment tracking the former statute. Compare Corbin v. State, 55 Ala.App. 33, 34, n. 1, 312 So.2d 604 (1975) ().
Under § 20-2-70(a), the State did not have to negative the conduct proscribed in the separate clause (beginning "provided, that any person who possesses any marihuana for his personal use ...") because that clause was not part of the definition of the offense found in the enacting clause. See Grattan v. State, 71 Ala. 344 (1882); Davis v. State, 39 Ala. 521 (1865). Instead, it was an exception or proviso restricting the field of operation of the offense previously defined. See Hogue v. Jefferson County, 250 Ala. 28, 30-31, 32 So.2d 810, 812 (1947). In Hall v. State, supra, our Supreme Court stated that the "most practical and workable rule" to be used in construing the Controlled Substances Act was the following:
Id. at 400, 281 So.2d at 665 (quoting Joyce on Indictments § 279).
In 1987, the Drug Crimes Amendments Act repealed § 20-2-70 and enacted, among other provisions, §§ 13A-12-213 and -214. The 1987 amendment was primarily a response to the holding of Ex parte Chambers, 522 So.2d 313 (Ala.1987), that drug offenders could not be sentenced under the habitual offender provisions of Title 13A. Section 11 of the Drug Crimes Amendments Act states: "The provisions of this act are to be included in the Code of Alabama 1975, as a part of Title 13A, 'Alabama Criminal Code,' and all provisions of Title 13A, including the Habitual Felony Offender Act, are applicable thereto...." However, the repeal of § 20-2-70 and the enactment of the 1987 Drug Crimes Amendments Act, was not a mere transfer of former Title 20 drug offenses to Title 13A. It involved a substantial rewriting and new definitions of the controlled substance offenses.
Section 13A-12-213, under which the present indictment was framed, provides the following:
Section 13A-12-214 provides:
There is no offense outlined in either § 13A-12-213 or § 13A-12-214 whose enacting clause defines the proscribed conduct merely in terms of "possession of marihuana," as § 20-2-70(a) defined the offense in terms of "possession of controlled substances." Under § 13A-12-213, the first degree (felony) offense is committed in one of two ways: (1) if a person "possesses marihuana for other than personal use," or (2) if a person possesses marihuana for personal use after a previous conviction for possession of marihuana for personal use. Under § 13A-12-214, the second degree (misdemeanor) offense is committed if a person "possesses marihuana for his personal use only."
The phrases "for other than personal use" and "for ... personal use only" modify, define, and classify the type of marihuana possession proscribed in §§ 13A-12-213 and -214. They are "inseparable ingredients of the offense." Hall v. State, 291 Ala. at 400, 281 So.2d at 665 (quoting Joyce on Indictments ). Because the phrases are definitional components of the offenses set out in §§ 13A-12-213 and -214, no indictment pursuant to those sections can omit them and still charge an offense. In United States v. Cook, 84 U.S. 168, 17 Wall. 168, 21 L.Ed. 538 (1872), the Supreme Court of the United States observed the following:
"Offences created by statute, as well as offences at common law, must be accurately and clearly described in an indictment, and if they cannot be, in any case, without an allegation that the accused is not within an exception contained in the statute defining the offence, it is clear that no indictment founded upon the statute can be a good one which does not contain such an allegation, as it is universally true that no indictment is sufficient if it does not accurately and clearly allege all the ingredients of which the offence is composed." Id. at 174 (emphasis added).
In Hawkins v. State, 549 So.2d 552 (Ala.Cr.App.1989) (Bowen, J., concurring), this court held that the phrase "being 16 years old or older," used to describe one who commits first degree sexual abuse, constituted an essential element of the offense which must be pleaded and proved by the State. The concurring opinion observed the following, which is equally applicable here:
"The phrase 'being 16 years old or older' embodies an essential element which must be pleaded and proved by the prosecution for [two] reasons: (a) its grammatical and logical relationship to the rest of the statutory prohibition indicates that it is a definitional component of the offense; [and] (b) it differs so markedly from the proviso, exception, or limitation contained in the predecessor statute on the same subject that it must be construed differently...."
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