Winnings v. State

• Decision Date: 20 February 1979
• Docket Number: 6 Div. 781
• Citation: 370 So.2d 323
• Parties: Kurt WINNINGS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 323

370 So.2d 323

Kurt WINNINGS v. STATE.

6 Div. 781.

Court of Criminal Appeals of Alabama.

Feb. 20, 1979.

Rehearing Denied March 27, 1979.

Henry C. Wiley, Jr., Jasper, for appellant.

William J. Baxley, Atty. Gen., and L. G. Kendrick, Asst. Atty. Gen., for the State, appellee.

DeCARLO, Judge.

Kurt M. Winnings was convicted in the circuit court of Walker County, Alabama for violating the Alabama Controlled Substances Act. An application for probation was filed and sentencing was postponed. At a subsequent hearing, probation was denied and the appellant was sentenced to six years imprisonment. Appellant gave notice of appeal after a motion for a new trial was denied by the trial court. The appeal is now before this court for review and appellant has been provided with a free transcript and appointed counsel.

From the transcript at trial the pertinent facts appear as follows:

On June 1, 1977, Agents Bill Ingram and Gerald Courington, both employees of the Alabama Alcohol Beverage Control and Drug Division, located a box in the woods, just off "Whittimore Road" in Walker County, Alabama. According to Agent Ingram, the box "was in the woods there and nothing to conceal it." Inside the box was a "brick or block type of" substance which appeared to be marijuana. Nothing else was in the box other than the "white like paper" and the newspaper that the block was wrapped in. Ingram added that the box was along "a well worn path."

After locating the marijuana, Ingram and Courington returned to the Walker County Sheriff's office, where they contacted Deputies Binkley and Guthrie.

Ingram and Guthrie returned to the box "a little after four," found it to be in substantially the same condition it had been in when they originally discovered it, and walked back toward Whittimore Road. Upon reaching the road, they saw a 1964, white Dodge automobile, containing three people, come to a stop, and the appellant, Kurt Winnings, get out of the car. At that point, Winnings was about thirty steps from them and approximately twenty-five steps from the box containing the marijuana, according to Ingram.

Ingram testified that Winnings went to the box and opened it.

"I could see him putting something in what appeared to be a bowl-type container and then I could see him holding up a plastic bag in this manner (indicating) looking at it and he turned it as I was looking at it. I couldn't tell what was in the bag, just that it was a plastic bag."

Winnings stayed at the box approximately seven minutes and left carrying the bowl.

When the appellant started back toward the road, the vehicle containing the other two people returned, "blowed one time," and Winnings got in. Ingram stated that the car contained the same two people who were in it when Winnings got out.

According to Ingram, Agent Guthrie then radioed the two deputies to stop the vehicle. Ingram returned to the box and found that the "marijuana block" was not there, and that the white paper surrounding the block was on the ground outside of the box. There were three plastic bags with an amount of green substance in them in the box. Ingram testified that he took possession of the box and stored it in the safe located in the Walker County Sheriff's office. Later, he turned over the contents of the box to the State toxicologist in Birmingham, Alabama.

Joel Guthrie, an investigator with the Walker County Sheriff's Department, testified to substantially the same facts outlined in Ingram's testimony. According to Guthrie, on the day in question the four officers involved in the investigation had driven to the area where the box was located, and Agents Guthrie and Ingram got out of the car and walked to the location of the box. Officers Courington and Binkley drove a short distance down the road and turned onto a side road.

Subsequently, while waiting on the edge of the wooded area Guthrie said he saw a four-door, white Dodge, with a Tennessee license plate on the front, coming down the road. The car stopped at the edge of the road just above where he and Ingram were waiting.

Guthrie saw three people in the car and saw one of the occupants, the appellant, get out. Guthrie testified that he saw the appellant go to the box and remain there for about ten minutes. Appellant opened the lid on the box and began "doing something down inside the box." After approximately ten minutes, the car returned, blew its horn, and appellant closed the box and made his way back to the road. Appellant got into the car and the car drove away. Guthrie said that, at that point he radioed Courington and Binkley and told them to "stop the car and check it out."

Guthrie recalled that, after he placed the radio call to Deputies Courington and Binkley, all four officers drove to the appellant's home where they saw the white Dodge automobile parked. Guthrie also stated that the automobile had a Tennessee license plate on the front and a Louisiana tag on the back. The officers found three people in appellant's home, one of whom was the appellant. At that point, the appellant was placed under arrest.

Gerald Courington testified that, on June 1, 1977, while conducting an investigation with officers of the Walker County Sheriff's Department, he and three other officers drove to an area known as "Curry," where Agents Guthrie and Ingram got out of the car. He and Deputy Binkley drove down the road for a quarter of a mile and "pulled off on an old log road."

According to Courington, they were in communication with Guthrie and Ingram by radio and they had remained parked at that location for approximately twenty minutes when they were called on the radio. Courington stated that they were asked to stop a white Dodge with a Louisiana tag. He said that he and Binkley returned to the main road, and that, when they first saw the other car, they were about one hundred yards behind it. Courington, who was driving, turned the "blue light" on, and the Dodge stopped about "150 yards on down the road."

Courington observed three people in the car at the time, and, when he turned his blue light on, he saw someone sitting on the right side of the car next to the driver hold a "white bowl out the window . . . sideways."

The driver of the automobile was a Mr. Bennett; a young lady was sitting in the center of the front seat; and the appellant was sitting on the passenger side. According to the officer's testimony, the bowl was held out of the car window on the appellant's side of the vehicle.

Courington testified that the three people were searched when the automobile was stopped but that he did not find anything in the car "that we could determine what it was." He did not place the appellant under arrest at the time because "I didn't have evidence at that time to place him under arrest."

According to Courington, they then "went back up to pick up Guthrie and Ingram." Agents Guthrie and Ingram informed him of what they had seen, and the four officers went to the appellant's home.

Bunny Cottrell, Chief Deputy Sheriff of Walker County, testified that the key to the box found by the officers had been left for safekeeping in his desk drawer. According to Cottrell, the drawer was normally locked, and Deputy Guthrie also had a key to the drawer. Cottrell was unable to state definitely whether the drawer was locked or unlocked at any particular time because, he explained, on an average day, "forty or fifty" people were in and out of the sheriff's office. He also testified that the vault in which the box was kept often remained open during the day, and that approximately fifteen people employed by the sheriff's department knew the combination to the vault.

Arthur Craig Bailey testified that he was an employee of the State Department of Toxicology in criminal investigation, and was assigned to the Birmingham office. He stated that he was familiar with the testing procedures for identifying marijuana, and that he had analyzed substances alleged to be marijuana on "many occasions." Bailey explained that, in following accepted testing procedures for marijuana, he normally conducted two tests, and testified that he had conducted two tests on the substances turned over to him in the present case.

According to Bailey's testimony, on July 26, 1977, Officer Ingram, of the Walker County Sheriff's Department, submitted two plastic bags containing material alleged to be marijuana to the toxicology office for examination. Bailey stated that the results of this examination were "positive" and that, in his opinion, the material was marijuana.

Bailey testified, over defense counsel's objection, that on the morning of the trial he had performed another test on some of the same material turned over to him by Ingram. The results of that test were also positive, and it was his opinion that the substance was marijuana.

On further questioning, Bailey stated that the substance turned over to him weighed approximately 364.5 grams or a little over thirteen ounces. It was his judgment that this amount of marijuana could be purchased for about one-hundred and fifty to two-hundred and fifty dollars "on the streets." He stated that he did not run a test on the material turned over to him to determine the presence of tetrahydrocannabinol, hereinafter, THC.

During cross-examination, Bailey testified that THC was a "common constituent of marijuana" and, "in the cases I have analyzed for, it has been found, yes, sir." He also stated that he did not know of any marijuana that did not contain THC or, was not hallucinogenic.

At the conclusion of the State's case, defense counsel made a motion to exclude the State's evidence on the grounds that the appellant was charged with possession of marijuana, which encompassed the possession of THC, because of the spelling of the word Marijuana. Appellant asserted that THC is the controlled substance whose possession is proscribed by the Alabama Controlled Substances Act.

The motion to exclude was overruled...