Williams v. State

• Decision Date: 04 April 2008
• Docket Number: CR-06-1451.
• Citation: 3 So.3d 285
• Parties: Corey Lee WILLIAMS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

3 So.3d 285

Corey Lee WILLIAMS v. STATE of Alabama.

CR-06-1451.

Court of Criminal Appeals of Alabama.

April 4, 2008.

Rehearing Denied May 16, 2008.

Certiorari Denied August 8, 2008

Alabama Supreme Court 1071198.

M. Joanne Camp, Opelika, for appellant.

Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

WELCH, Judge.

Corey Lee Williams was convicted of assault in the second degree for injuries he inflicted upon a police officer during the course of the officer's duties, a violation of § 13A-6-21(a)(4), Ala.Code 1975. Williams was sentenced to ten years' imprisonment and was fined $2,000.

The evidence adduced at trial tended to show the following. On the afternoon of March 11, 2006, Opelika police officers Gary Jernigan and James Daniel separately responded to a report of possible drug activity at the corner of South 4th Street and Bankston Alley in Opelika. Neither officer saw anyone at the corner, so Officer Jernigan told Officer Daniel they needed to drive down Bankston Alley to investigate. Officer Daniel's car was ahead of Officer Jernigan's car as they drove down the street, which was described as a one-way dead-end street about 100 yards long at most. The houses along the street have little room between them.

The officers saw two men outside of a house about halfway down Bankston Alley. The officers stopped their patrol cars and approached the two men. At the time, the officers did not know who the men were. They were later identified as Clint Flakes and Tyrone Flakes. Officer Jernigan asked Tyrone "what he was doing there" (R. 136) and explained that the police were investigating a report of drug activity in the area.

Clint began loudly complaining and cursing. Officer Jernigan said he asked Clint to calm down, but Clint became belligerent and "giving [him] that stare. A real mean stare." (R. 190.) The Flakeses refused to show the officers their identification. Clint finally admitted there was a warrant pending for his arrest and said, "Come get me, motherfuckers." (R. 192.) At that point, Officer Jernigan told Clint he was arresting him for disorderly conduct, and Clint turned and ran inside the house.

Officer Jernigan and Officer Daniel followed Clint into the house, with Officer Jernigan in the lead. Clint ran into the kitchen. As Officer Jernigan entered the kitchen, somebody hit him from the right, knocking him to the floor and knocking off his glasses. Officer Jernigan said he lost consciousness for a brief time.

Officer Daniel sprayed Officer Jernigan's assailant with Freeze Plus P brand mace and then began to fight with him. Officer Daniel could not identify Officer Jernigan's assailant. While Officer Daniel was fighting with that person, however, someone knocked the mace from his hands and he was hit on the head from behind. Officer Daniel said he was assaulted by three people.

Officer Jernigan came to on the ground to someone kicking him in the face. He testified that four black males were involved in the assault on him and Officer Daniel, but he could not identify any of them except Clint Flakes. Officer Jernigan was able to get on his hands and knees and spray mace on the person on top of him and the two that were on top of Officer Daniel. Officer Daniel grabbed one of his assailants around the leg and was able to pull of his shoe before the assailant fled. Neither officer sprayed mace again at the house. Medical records show that Officer Jernigan suffered a broken nose in the assault.

The people involved in the assaults of the officers fled the house. Some suspects who were known to the officers were identified from a patrol car videotape showing the assailants as they fled the house. One suspect seen on the tape was not identified. One of the officers' patrol cars was blocking a car at the house. An investigation showed that the car belonged to Williams.

Officer Jernigan testified that the Freeze Plus P mace had a range of seven to 10 feet as it left the can. Martin Cash, a distributor of Freeze Plus P mace, testified that when the mace is sprayed, it does not disseminate like an aerosol, but shoots in a straight stream. The mace contains a fluorescent substance that glows under ultraviolet light, or a black light. The substance becomes embedded in the skin and is difficult to wash off. The substance, invisible to the naked eye, can be detected by black light up to 72 hours. The substance is intended to allow police to identify people who have been sprayed with mace when they are placed under a black light.

On the morning of March 13, 2006, less than 48 hours after the assault had taken place, the suspects whom police had identified and Williams came to the police station for questioning.¹ Williams was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he made a statement in which he never admitted striking either Officer Jernigan or Officer Daniel. He refused to sign the statement.

After making the statement, Williams was asked to go to another office. He went with several police officers to a windowless room with ordinary lighting. In that office, an ultraviolet light and a digital camera were mounted on a tripod. The ordinary lighting was turned off, and the ultraviolet light was turned on. The officer could see on Williams's skin a fluorescent pattern consistent with that of someone who had been directly sprayed with Freeze Plus P, and not from a possible hit from mace sprayed over a large area. The officer photographed the fluorescent pattern. After Williams was photographed, he was allowed to leave the police station. He was arrested and charged with the assault four days later.

I.

Williams contends that the trial court improperly denied his motion to suppress the photograph taken under ultraviolet light at the Opelika police station. Specifically, Williams argues that the photograph taken of him showing a fluorescent pattern constituted an illegal search.

The suppression hearing on the issue whether the photographs of Williams taken under ultraviolet light was due to be suppressed was held outside the presence of the jury; therefore, we would ordinarily review the evidentiary findings of the trial court under the ore tenus standard. Ex parte Jackson, 886 So.2d 155, 159 (Ala. 2004). However, here, the evidence adduced at the suppression hearing regarding how the photographs came to be taken and the manner in which they were taken was undisputed. "`"Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and [this Court] will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts."'" Jackson, 886 So.2d at 159, quoting State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting in turn Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980).

"Generally, photographs are admissible into evidence in a criminal prosecution `if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and their admission is within the sound discretion of the trial judge.' Magwood v. State, 494 So.2d 124, 141 (Ala.Crim.App. 1985), aff'd, 494 So.2d 154 (Ala.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). See also Woods v. State, 460 So.2d 291 (Ala.Crim.App.1984); Washington v. State, 415 So.2d 1175 (Ala. Crim.App.1982); C. Gamble, McElroy's Alabama Evidence § 207.01(2) (3d ed.1977)."

Bankhead v. State, 585 So.2d 97, 109 (Ala. Crim.App.1989), aff'd in relevant part, 585 So.2d 112 (Ala.1991), rev'd on other grounds, 625 So.2d 1146 (Ala.1993).

Alabama's appellate courts have not addressed this issue. In the past, this court has held that, "[i]n the context of the Fourth Amendment, `a "search" implies probing into secret places for that which is hidden [and] implies force, actual or constructive, or a forceable dispossession of property of one by exploratory acts.' Cunningham v. State, 52 Ala.App. 440, 293 So.2d 865 (1974); Knox v. State, 50 Ala. App. 494, 280 So.2d 200 (1973)." Vogel v. State, 426 So.2d 863, 872 (Ala.Crim.App. 1980). Additionally, this court has held that

"in general, the mere observation of a person's physical characteristics does not constitute a Fourth Amendment search. See Nguyen v. State, 547 So.2d 582, 585 (Ala.Crim.App.1988). `"Moreover, it is no search to `record' those characteristics, in effect, by taking a picture of the individual."' Nguyen v. State, 547 So.2d at 585, quoting LaFave, Search and Seizure, § 2.6(a) (1987)."

Powell v. State, 796 So.2d 404, 428-29 (Ala. Crim.App.1999).

As Professor Wayne LaFave points out, courts across the United States have struggled with the issue of whether use of an ultraviolet light to reveal whether a suspect has come in contact with a certain object or has been in a certain place constitutes a "search." 1 Wayne R. LaFave, Search and Seizure § 2.2(d) (4th. ed.2004). Of the relatively few jurisdictions that have addressed the issue, the majority have found that it does not. The United States Supreme Court has not addressed the issue.

Professor LaFave cites Commonwealth v. DeWitt, 226 Pa.Super. 372, 314 A.2d 27 (1973), as illustrative of those cases in which courts have determined that use of an ultraviolet light in such instances does not constitute a search. In that case, customs agents found hashish hidden in a table with a false top, which had been shipped into the United States from overseas. The agents treated the hashish with fluorescent grease, repackaged it, and allowed it to be delivered. Agents then went to the address where the delivery had been made to execute a warrant for the hashish. While there, they passed an ultraviolet light over the hands of the defendants and learned that they had handled the hashish. Just as in the instant case, the...