White v. State, 1 Div. 70

• Decision Date: 18 March 1980
• Docket Number: 1 Div. 70
• Citation: 384 So.2d 1161
• Parties: John WHITE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1161

384 So.2d 1161

John WHITE v. STATE.

1 Div. 70.

Court of Criminal Appeals of Alabama.

March 18, 1980.

Certiorari Denied May 6, 1980.

Thomas M. Haas, James M. Byrd, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, John White, was convicted for unlawfully selling phencyclidine, a controlled substance, and sentenced to five years imprisonment, and assessed a fine of one thousand dollars, and placed on probation for five years, and he appeals to this Court.

This appeal was submitted on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court, and is so represented in this Court.

Appellant contends in his brief that his conviction should be reversed because the trial court erred: by allowing the admission into evidence of state's exhibit number 1 over appellant's objection that state had failed to affirmatively prove the chain of custody; by overruling appellant's motion for a mistrial on the grounds of prosecutor's highly prejudicial comments about appellant's counsel; due to the cumulative effect of prosecutor's prejudicial comments during his closing remarks; the court's refusal to give appellant's written, requested jury instruction number 5.

State's evidence tended to prove that state's witness, Officer Beard, was employed by the Mobile County Sheriff's Department Of Narcotics Division as an undercover agent; that basically her duty was to buy drugs from persons off the street; that she knows the appellant, John White; that on April 20, 1977 she went to the home of the appellant in Mobile County, Alabama, and asked him if he had anything for sale and he said he had some phencyclidine, known as TAC, and angel dust, and tea; that at the time she went to the home of the appellant she did not have any controlled substances on her, or anything, other than the money she had with her; that she paid the appellant the money for the phencyclidine, and the appellant gave her a substance in clear cellophane; that state's exhibit 1 appears to be the paper that she made the buy in; that the substance she bought from the appellant is in the same condition now as when she bought it from appellant and when she turned it over to Deputy Richard White.

State's evidence further tended to prove that on April 20, 1977 state's witness, Officer Richard White, was employed as a deputy sheriff for Mobile County; that he and Officer Beard were working together; that he received the substance contained in state's exhibit 1 from Officer Beard, put it in an envelope, and kept it in his possession for about ten or fifteen minutes and turned it over to Dr. Sennett; that it was in the same condition when he turned it over to Dr. Sennett as it was when he received it from Officer Beard. On cross-examination Officer Richard White testified that he does not have any idea whether state's exhibit 1 is what Officer Beard gave to him or not.

State's evidence further tended to prove that state's witness, Dr. Sennett, an employee of the State Department Of Toxicology And Criminal Investigation, was a qualified drug analyst; that state's exhibit number 1 was received by Dr. Sennett from Deputy Sheriff Richard White, and Dr. Sennett put it in that envelope and sealed it; that witness removed the seal and analyzed the contents of the envelope and the test revealed the presence of phencyclidine, a controlled substance; that the contents of the envelope were placed back in the envelope and resealed by Dr. Sennett. The record shows that state's exhibit 1 was then offered in evidence by the state, and the appellant objected to its admission on the grounds that proper chain of evidence has not been established. The court overruled appellant's objection and state's exhibit number 1 was admitted in evidence.

We hold that the evidence in this record is sufficient to warrant the reception of state's exhibit 1 in evidence against the objection that an unbroken chain of possession has not been shown. It is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the substance was the same as bought from appellant by Officer Beard, and not substantially different from the substance as it existed at the time she received it from appellant. Dennison v. State, 259 Ala. 424, 66 So.2d 552; Pitts v. State, 291 Ala. 136, 279 So.2d 119; Blakey v. State, Ala.Cr.App., 344 So.2d 812.

Appellant's contention that the trial court erred in overruling his motion for a mistrial because of the prosecutor's highly prejudicial comments on appellant's attorney is based on the following comment made by the prosecutor during his closing argument. We quote from the record:

"MR. NEWMAN: After twenty-six years I hope something comes out of that. He's certainly paid enough."

Whereupon the jury was excused. Out of the presence of the jury appellant made a motion for a mistrial on the grounds that the prosecutor made improper argument to the jury, and it's improper and cannot be corrected. The court overruled appellant's motion for a mistrial, and the appellant excepted to the court's ruling. Whereupon the jury returned to the jury box and the following took place in the presence of the jury:

"THE COURT: All right. Ladies and gentlemen of the jury, I'm going to ask you to disregard any...