Yarbrough v. State

Decision Date23 June 1981
Docket Number6 Div. 335
PartiesMichael Harvey YARBROUGH v. STATE.
CourtAlabama Court of Criminal Appeals

Albert C. Hultquist, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was indicted by the August, 1979, session of the Jefferson County grand jury for violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., Code of Alabama 1975. In the first count of the two-count indictment, appellant was charged with the illegal possession of phentermine, codeine and pentazocine, and in the second count he was charged with the unlawful possession of 77.1 grams of marijuana. After a trial by jury the appellant was found guilty as charged. The trial court sentenced him to three years imprisonment. At arraignment and throughout the trial proceedings, appellant was represented by appointed counsel.

The State called as its first witness Jefferson County Deputy Sheriff Richard Thrasher. He stated that he had been assigned to the vice and narcotics division for approximately eighteen months. On April 17, 1979, Deputy Thrasher assisted in the execution of a search warrant of the appellant's residence, located at Route 2, Box 235A, Pinson, Alabama, in Jefferson County. He searched one of the bedrooms and discovered what appeared to be twenty-two marijuana plants. Deputy Thrasher stated that no one else was present in the bedroom when he searched it although three persons other than law enforcement personnel were in the house when the search warrant was executed. Appellant was not present when the search began although he was brought to the house about fifteen minutes after the warrant was executed.

Jefferson County Deputy Sheriff J. H. Yarbrough testified that he had been a member of the vice and narcotics division for approximately five years. He stated that he had a search warrant issued to him to search the residence located at Route 2, Box 235A, Pinson, Alabama, for drugs. He stated that the warrant was executed at 3:50 p. m. on April 17, 1979. Deputy Yarbrough stated that Deputy Dennis Blanton was in charge of receiving and recording any evidence discovered during the search. He stated that he received several marijuana-like plants discovered by Deputy Thrasher. Deputy Yarbrough stated that, upon entering the house, he saw two females in the living room. He identified himself, stated his purpose, and exhibited the search warrant to one of them. He asked one of the ladies the whereabouts of the appellant to which she replied that he was outside. Both women informed Deputy Yarbrough that they did not reside at the house.

Deputy Yarbrough searched the living room wherein he found, among other things, fifty yellow capsules in a plastic container on the coffee table. He also found several hand-rolled cigarettes, cigarette papers, and an alligator clip on the end table.

Deputy Yarbrough testified that, after all the evidence seized during the search had been bagged and labeled, it was placed in a large grocery bag and locked in the trunk of his car. He stated that he sorted the material at his office and placed that pertaining to the appellant in an envelope which he turned over to Ms. Mary Alice Rhodes. Deputy Yarbrough testified that every item seized remained under his control until relinquished to Ms. Rhodes and was in the same condition throughout his possession. He stated that all the items discovered were kept by him under his care and custody until he turned them over to the State Department of Forensic Sciences. He stated that the items were in the same condition when given to the toxicologist, Mary Rhodes, as they were when he initially received them.

Deputy Yarbrough testified to statements made by the appellant after he was arrested and given his Miranda warnings. Appellant stated that he understood his rights. He stated that the statements were made while transporting him to the county jail. He stated that the drive took approximately twenty-five to thirty minutes. No objection was made to the admission of the statements.

Deputy Yarbrough stated that the appellant admitted ownership of the plants found by Deputy Thrasher. He admitted that the searched house was his residence and stated "... that all we had him on was reefer." In reference to the fifty yellow capsules found in the living room, the appellant stated that a girl, who had a prescription for them, had brought them attempting to sell them. The appellant would not identify the name of the girl.

Deputy Yarbrough received several items from Deputy Dennis Blanton, including evidence discovered by Deputy Blanton in a bedroom, as well as evidence discovered on the appellant by Deputy J. E. Brooks.

Jefferson County Deputy Sheriff Dennis Blanton testified to assisting in the April 17, 1979, search of appellant's residence. He stated that his primary function was to record any evidence seized and turn it over to Deputy Yarbrough. He stated that he searched a bedroom, which, apparently was used by the appellant, and seized various assorted pills and a quantity of plant material resembling marijuana. He stated that he was the only person to search the bedroom and saw men's clothing in and around the room. Deputy Blanton testified that he received a quantity of pills, marijuana, and hypodermic needles from Deputy J. E. Brooks. He turned them over to Deputy Yarbrough.

Ms. Mary Alice Rhodes testified that she was employed by the State Department of Forensic Sciences with her duties centered primarily upon the analyses of drugs. She reviewed her training, experience, and qualifications to perform such analyses and her qualifications were not questioned by appellant. She described in detail the tests performed on each substance.

On June 9, 1979, Ms. Rhodes received an envelope from Deputy Yarbrough containing evidence seized during the April 17, 1979, search of the appellant's residence. She testified that the contents were under her sole care, control, and custody and were in the same condition at trial as when they were received, except for the removal of certain portions for analysis. She stated that, on August 1, 1979, she conducted an analysis of each of the substances contained in the envelope. Her tests revealed that the fifty yellow capsules found in the appellant's living room by Deputy Yarbrough contained phentermine; the plant material and contents of the hand-rolled cigarettes were marijuana; and three tablets discovered by Deputy Blanton in what appeared to be the appellant's bedroom contained codeine with another three containing pentazocine. The envelope and its contents were admitted into evidence without objection. Ms. Rhodes stated that two of the bags inside the envelope contained non-controlled substances and were commonly referred to as diet pills.

Jefferson County Deputy Sheriff William B. Carson testified that, on April 17, 1979, appellant's residence was included in his patrol area. Around 4:00 p. m. he arrived at the house but did not participate in the search. Rather, he remained outside by the patrol cars where he saw the appellant crouching in a wooded area behind the house. Deputy Carson testified that the appellant bobbed up and down as if he were looking around. The appellant, apparently unaware of Deputy Carson, moved toward him while remaining in his crouched position. When Deputy Carson lost sight of him, he called for assistance and apprehended him. The appellant was found lying in the underbrush near his residence. Deputy J. E. Brooks assisted in appellant's capture and stated to Deputy Carson that "... this is the man we are looking for." Deputy Carson returned to his post while Deputy Brooks escorted appellant to the house.

Jefferson County Deputy Sheriff J. E. Brooks testified that he assisted in the April 17, 1979, search of appellant's residence and in the capture of him. He stated that, after taking appellant to the front yard, he searched him and found on his person thirty white tablets and twenty-four capsules of two types. He turned them over to Deputies Blanton and Yarbrough. Deputy Brooks also found some syringes in the living room.

The appellant called his mother, Mrs. Jackie Yarbrough, to testify in his behalf. She stated that, on July 28, 1978, the appellant had been involved in an automobile accident and as a consequence was hospitalized intermittently until the end of the year. She stated that he was prescribed numerous medicines, two of which were Tylenol 3 and Talwin, the brand names for medicines containing codeine and pentazocine, respectively. She testified that she would place several...

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