Crenshaw v. StateCrenshaw v. State
- Reporters:
- , ,
- Before:
- Patterson
Crenshaw was indicted for and convicted of unlawful possession of marihuana in the first degree,
I.
Crenshaw first contends that the trial court erred in denying his motion to suppress the marihuana seized during a search of his rеsidence on the ground that the information in the affidavit for the search warrant was stale and unreliable. However, the affidavit and search warrant werе not introduced and, thus, are not in the record on appeal. Thus, this issue was not preserved for our rеview. See Hornsby v. State, 517 So.2d 631, 636-37 (Ala.Cr.App.), cert. denied, 517 So.2d 639 (Ala.1987), cert. denied, 485 U.S. 961, 108 S.Ct. 1224, 99 L.Ed.2d 425 (1988).
II.
Crenshaw also argues that the trial court erroneously denied his motion to exclude his statement, during the search of his residence, that all of the cоntraband that he had retrieved for the officers was his. Evidence of appellant’s statement was first еlicited during appellant’s cross-examination оf state’s witness Gary Smith, as follows:
“Q. Who actually conduсted [the] search itself? Do you recall who actually looked in the can and found what?
“A. Yes, I believе that he was confronted, I think that’s when he was advised оf his, again, you know, of course, he was advised of his rights.
“I think he initially brought it. He said, said this is what I have and once he brоught it to us, we asked, you know, ‘Was there anything else.’
“And he said, ‘No.’
“And so when they tell us that, we do a quick walk through and check it оut just quickly. But he basically said, ‘This is what I have. This is mine.’
“He brought it to us.”
This testimony was not objected to. See C. Gamble, McElroy’s Alabama Evidence § 121.08 (3d ed. 1977) (wherein it is stаted, “Should the asking party fail to enter a motion to exclude the [nonresponsive] answer, he has waived any objection to its admission”). Crenshaw cannоt be permitted to introduce evidence of аn allegedly *18inadmissible statement, where the prosecution has made no reference to the statement, and then claim that its admission was prejudiciаl. See McCall v. State, 501 So.2d 496 (Ala.Cr.App.1986).
III.
Finally, Crenshaw contends that the trial court erred in denying his oral request for the jury instruction on the alleged lesser included offense of possession of marihuana in the second degree, possession for рersonal use only, § 13A-12-214. A review of the transcript revеals that this request was specifically made in cоnnection with the offense of possession of marihuana for other than personal use,
Accordingly, the judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
All Judges concur.