Whitlow v. State
| Decision Date | 14 April 1987 |
| Docket Number | 5 Div. 117 |
| Citation | 509 So.2d 252 |
| Parties | Marvin Felton WHITLOW, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Michael D. Cook, Lanett, for appellant.
Don Siegelman, Atty. Gen., and J. Elizabeth Kellum, Asst. Atty. Gen., for appellee.
The appellant, Marvin Felton Whitlow, Jr., was convicted of trafficking in cannabis and sentenced to five years' imprisonment.
An Auburn, Alabama, police officer arrested one Donald Pouncey for the sale of marijuana to undercover officers. Pouncey agreed to cooperate with the police in arresting other individuals selling marijuana. On October 23, 1985, the officers monitored a conversation between Pouncey and a Ricky Smith, which set up a drug buy. One of the police officers posed as a wealthy student who wanted to buy enough marijuana for all the members of his college fraternity. Later that night, the officer and Pouncey first encountered appellant Whitlow and Smith in Auburn. The officer and Pouncey then followed Whitlow and Smith, who travelled in a van, outside the city of Auburn onto an isolated road. Smith gave the officer a bag of marijuana in exchange for $2,050.00 handed him by the officer. The appellant stated to Pouncey that he was getting some of the money for driving the van. Smith and the appellant returned to the van and left. The officer posing as a college student then notified the Auburn Police Department that the transaction was completed and brought the marijuana to headquarters.
The police set up a roadblock in order to apprehend appellant Whitlow and Smith. Around 1:00 a.m., their van approached the roadblock. The appellant, although ordered to stop, crashed the roadblock, hitting a police car and injuring an officer. Appellant's companion, Smith, stated that he threw the money out of the window. Before appellant was interviewed, the police read him his Miranda rights. The appellant said he understood them and signed a waiver-of-rights form. The appellant originally denied knowledge of the drug buy transaction, but later admitted to all the events that occurred that night.
The appellant first argues that the trial court erred to reversal when it admitted into evidence the taped conversation between Smith and Pouncey. In this case, the appellant was in Smith's presence when Pouncey telephoned Smith to set up the drug deal. The appellant drove the vehicle used in the deal and was to receive some of the money made from the sale of the marijuana. An unlawful conspiracy may be proved from the conduct of the parties, the circumstances of the act, and conduct of the accused after the act. Eldridge v. State, 418 So.2d 203 (Ala.Cr.App.1982); Cox v. State, 367 So.2d 535 (Ala.Cr.App.1978), writ denied, 367 So.2d 542 (Ala.1979). Where an unlawful conspiracy exists, any act or statement made by the accused's coconspirator before committing the crime in furtherance of the conspiracy is admissible against the accused. Eldridge, supra; Cox, supra. Therefore, the trial court did not err in receiving into evidence the taped conversation.
The appellant argues that the trial court erroneously received into evidence the appellant's written statement. Before an accused's confession can be received against him, both voluntariness and a Miranda predicate must be shown. Malone v. State, 452 So.2d 1386 (Ala.Cr.App.1984); Thomas v. State, 373 So.2d 1167 (Ala.1979). The appellant makes no contention that his Miranda rights were not explained to him. He argues that his confession was not voluntary, because, he says, he was too frightened to knowingly and intelligently waive his rights. The relative courage or cowardice of a suspect giving a statement to police may be considered by a court as an element of mental attitude in weighing "voluntariness." Voluntariness of an alleged confession is a question for the trial court and we will not disturb the court's ruling unless it appears to be manifestly wrong. Tice v. State, 386 So.2d 1180 (Ala.Cr.App.1980). In this case, the appellant's assertion of fright was just one of many things for the trial court to weigh. The objective evidence was that the confession was voluntary and we find no reason to disturb the trial court's ruling.
The appellant next argues that a sufficient chain of custody was not established for receiving the marijuana into evidence. The appellant argues that the absence of his or his co-defendant's name on the package of marijuana and an incorrect date on the package breaks or casts doubt on the chain of custody. A reasonable probability that the item is the same as the evidence at the beginning of the chain of custody is required, not an absolute certainty that the evidence was not tampered with. Slaughter v. State, 411 So.2d 819 (Ala.Cr.App.1981), cert. denied, 411 So.2d 819 (Ala.1982).
In this case the police officer testified that after he took the marijuana purchased from Smith and the appellant, he placed it in a bag and sealed it. He then placed it in the evidence locker at police headquarters. The bag remained in the locker until the same officer sent it to the State Forensic Sciences Laboratory. The material was determined to be marijuana. The marijuana was placed in three small bags in order for it to be used in appellant's trial, and then it was turned over to another officer. It remained in this police officer's custody until the trial. All participants in the chain testified to this series of occurrences. The police officer marking the bag testified that he knew the reason for a different date appearing on the container. The incorrect date was written on the bag because another label was used as an example, and he inadvertently copied the date from the other label. The appellant cites no authority for the proposition that an error of date and the absence of his name breaks the chain of custody. From the testimony given at trial, the court was well justified in finding that a reasonable probability existed that the evidence submitted at trial was the same as the evidence seized at the beginning of the chain.
The appellant argues that the state did not present a prima facie case of trafficking in cannabis. Trafficking is defined in § 20-2-80, Code of Alabama 1975:
The state presented evidence that the appellant knowingly participated in the sale of 2.92 pounds of marijuana to an undercover police officer. The fact that the appellant claimed otherwise presented a question for the jury. Conflicting evidence is a question for the jury. Suggs v. State, 403 So.2d 309 (Ala.Cr.App.1981), cert. denied, 403 So.2d 313 (Ala.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1981). We find that the state presented evidence from which the jury could have been convinced beyond a reasonable doubt that each element of the crime was proven.
The appellant argues that he was denied his constitutional right to a fair and impartial trial, upon several grounds. He first argues that the failure of the state to comply with the court's discovery order denied him a fair trial. The state complied with the order, with the exception of one statement. At trial it was discovered that the appellant had not received one of the statements. This omission was promptly remedied.
The appellant argues prosecutorial misconduct in the prosecutor's comments and questioning during cross-examination and closing argument. On cross-examination by Mr. Wilkes, the following occurred:
(Thereupon, the following proceedings were had in the presence of but out of the hearing of the jury.)
To continue reading
Request your trial
-
Capote v. State
...their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So. 2d 252, 256 (Ala. Cr. App. 1987) ; Wysinger v. State, 448 So. 2d 435, 438 (Ala. Cr. App. 1983) ; Carpenter v. State, 404 So. 2d 89, 97 (Ala. Cr. App. 1......
-
Petersen v. State
...their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So. 2d 252, 256 (Ala. Cr. App. 1987) ; Wysinger v. State, 448 So. 2d 435, 438 (Ala. Cr. App. 1983) ; Carpenter v. State, 404 So. 2d 89, 97 (Ala. Cr. App. 1......
-
Allen v. State
...their impact in the context of the particular trial, and not to view the allegedly improper acts in the abstract. Whitlow v. State, 509 So.2d 252, 256 (Ala.Cr.App.1987); Wysinger v. State, 448 So.2d 435, 438 (Ala.Cr.App.1983); Carpenter v. State, 404 So.2d 89, 97 (Ala.Cr.App.1980), cert. de......
-
Reynolds v. State Of Ala.
...the context of the entire trial and not in the abstract. See Duren v. State, 590 So. 2d 360 (Ala. Crim. App. 1990); Whitlow v. State, 509 So. 2d 252 (Ala. Crim. App. 1987). It is proper for a prosecutor to argue any legitimate inference that may be drawn from the evidence. See Snyder v. Sta......