Burks v. StateBurks v. State
Niiki Burks appeals his conviction for unlawful distribution of controlled substances, in violation of
I
The appellant contends that the evidence was insufficient to support the jury‘s verdict because, he argues, the State failed to establish a prima facie case of unlawful distribution of a controlled substance under
“In determining the sufficiency of the evidence to sustain the conviction, this court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence most favorable to the prosecution.” Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App. 1984), aff‘d, 471 So.2d 493 (Ala. 1985). The State presented ample evidence from which a jury could reasonably infer that the appellant sold marijuana to Marvin Dean, the informer for the Andalusia, Alabama, Police Department. Dean testified that on December 25, 1990, he drove to the appellant‘s house in Andalusia and made arrangements to purchase marijuana from the appellant. Dean then drove to the Andalusia Police Department where he was fitted with a body transmitter and given $40 in marked bills.
Dean later returned to the appellant‘s house and gave the appellant the marked money in exchange for the marijuana. After agreeing to deliver the marijuana to
The appellant contends that the State failed to establish a prima facie case of the unlawful distribution of a controlled substance because the State‘s forensic expert never testified that the alleged marijuana was a listed controlled substance, nor did the State introduce a certified copy of any list of controlled substances.
The fact that the State failed to produce such testimony showing marijuana to be a controlled substance is irrelevant. In Hutchins v. State, 560 So.2d 1113 (Ala.Cr.App. 1989), the defendant, appealing his conviction for the unlawful possession of cocaine, argued that the State had failed to prove a prima facie case of possession of cocaine as a controlled substance. This court held as follows: “The State proved the appellant was in possession of cocaine on the night he was arrested. There was no need for the State to prove that cocaine is a controlled substance. This court has held repeatedly that a trial court can take judicial notice of whether a substance is designated as a controlled substance and can so instruct the jury. Bentley v. State, 450 So.2d 197 (Ala.Cr.App. 1984); Congo v. State, 409 So.2d 475 (Ala.Cr.App. 1981), cert. denied, 412 So.2d 276 (Ala. 1982); Gilbert v. State, 401 So.2d 342 (Ala.Cr.App. 1981).”
In light of Hutchins, and Dean‘s testimony at trial, the State clearly produced sufficient evidence to establish a prima facie case against the appellant. Hence, the trial court correctly denied the appellant‘s motion for a judgment of acquittal.
II
The appellant next contends that he was denied the right to a fair trial by the unusual set of circumstances that was brought out in the hearing on the appellant‘s motion for new trial concerning the sale of marijuana to Dean. Through testimony, it was shown that Dean and his brother had, sometime before the appellant‘s arrest, procured a quantity of marijuana independent of Dean‘s informant activities for the police and without the police‘s knowledge. From this marijuana, Dean‘s brother sold the appellant and the appellant‘s accomplice the marijuana that was ultimately delivered by the appellant to Dean. It was also shown that the police searched the house occupied by Dean and his brother after the appellant had identified Dean‘s house as the source of the marijuana. When a search of Dean‘s house did not produce the marked bills or any marijuana, Dean‘s brother was persuaded to deliver these to the police by a promise that he would not be prosecuted. Neither Dean nor his brother were prosecuted.
First, the appellant contends that the unusual circumstances surrounding the sale of marijuana to Dean in and of themselves constitute a denial of the appellant‘s Fourteenth Amendment right to due process. We disagree.
The appellant not only fails to offer any authority to support his position, but also fails to specify the precise due process denied him. No evidence was offered at trial to suggest that Dean knew where the appellant intended to get the marijuana he ultimately sold to Dean, and no evidence was offered to suggest that Dean‘s brother knew what the appellant intended to do with the marijuana the appellant purchased from him.
Secondly, the appellant contends that he was denied a fair trial because Dean‘s brother was charged only with possession of marijuana and because Dean himself was never charged. Clearly, this argument lacks merit. The law is well settled that a criminal defendant has no right to be treated the same as his criminal associates: “The Supreme Court has stated that discretionary decision of State prosecutors to grant immunity to some participants of a crime and not others is not arbitrary or cruel and unusual under the
III
The appellant next raises several issues concerning the enhancement of his sentence under both
In Qualls v. State, 555 So.2d 1158 (Ala.Cr.App. 1989), this court broadly construed
However, even had the legislature intended to exclude “procuring agents” or other types of drug traffickers from the application of
The appellant in this case solicited the informant, took the marked money, and then returned with the marijuana, exactly as Qualls had done. In Qualls, this court found that the schoolyard statute,
The appellant next contends that
However, this attack on the constitutionality of these statutes is without merit. Amendment 38 clearly states that the legislature may authorize the courts to grant probation. “The concerned, was to grant the legislature the power to authorize the
The appellant further contends that his sentencing under both
Both
IV
Finally, the appellant contends that the trial court erred in denying his motion for a new trial alleging newly discovered evidence and ineffective assistance of trial counsel. We disagree.
The awarding of a new trial on the grounds of newly discovered evidence rests in the sound discretion of the trial court and depends largely on the credibility of the new evidence. Peterson v. State, 426 So.2d 494, 497 (Ala.Cr.App. 1982). To establish the right to a new trial on the ground of newly discovered evidence, a defendant must show: that the evidence will probably change the result if a new trial is granted; that the evidence has been discovered since trial; that it could not have been discovered before trial by the exercise of due diligence; that the evidence is material to the issue; and that the evidence is not merely cumulative or impeaching. Stout v. State, 547 So.2d 894 (Ala.Cr.App. 1988), aff‘d 547 So.2d 901 (Ala. 1989).
In post-trial testimony, William Hubert Dean, the brother of police informer Marvin Dean, stated that he and Marvin had co-owned the marijuana that the appellant ultimately sold to Marvin Dean. The appellant attempted to use William Hubert Dean‘s testimony as evidence of entrapment and argues that the State had concealed the evidence during the trial. Though William Hubert Dean did not testify at the trial, the trial judge, in his sound discretion, properly ruled that the testimony could not justify a new trial because that testimony was cumulative, of doubtful credibility, and contained information that could have been presented at the original trial. We agree with the trial judge.
The appellant also asserts that counsel was ineffective for failing to call as witnesses William Hubert Dean; Edward McClellon, the appellant‘s accomplice; or the appellant, and for failing to request a jury charge for possession. To demonstrate ineffectiveness of counsel, Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), states: “[t]he defendant must show that, but for counsel‘s unprofessional errors the proceedings would have been different.” The record is devoid of support for a new trial on this ground.
Trial counsel‘s decision not to call Dean, McClellon, or the appellant was a strategic decision. Moreover, trial counsel‘s failure to request a jury charge on the lesser included offense of possession of marijuana did not change the outcome of the trial. In this case, there was no reasonable theory for a charge on possession of marijuana; thus, counsel could not have been deficient for failing to request an instruction that would not have been proper. See Buice v. State, 574 So.2d 55 (Ala.Crim.App. 1990). As the trial judge noted in his dismissal of the appellant‘s motion for a new trial on this ground, the appellant
For the reasons set forth above, the judgment of the trial court is affirmed.
AFFIRMED.