Davis v. StateDavis v. State
Petitioner, Mike Davis, was convicted of selling cocaine and was sentenced to a term of six years in prison and fined $1,000.00. A request for probation and a motion for a new trial were both denied. The Alabama Court of Criminal Appeals affirmed the conviction on October 14, 1986, without opinion, and denied Davis’s application for a rehearing and his Rule 39(k), A.R.App.P., motion without comment,
(1) Whether the trial court erred by allowing evidence of a separate, subsequent offense;
(2) Whether the trial court erred in charging the jury on the defense of entrapment after the defendant had denied committing the act charged in the indictment;
(3) Whether thе defendant was denied effective assistance of counsel.
Davis was convicted of selling cocaine to Pat Gulley, a woman known to have used drugs. She was working with a police undercover agent at the time of the alleged crime. Gulley testified that she and Davis mеt at Davis’s father’s service station on December 3, 1983, and that Davis told her he would contact her later. She stated that Davis failed to kеep an appointment to meet her later that afternoon at a drug store, but stopped at her house that evening. When Davis stopped his truck, Jay Ivey, the undercover agent posing as Gulley’s boyfriend, asked him if he had cocaine. Davis claims that he told Ivey that hе had no cocaine and that he asked Ivey to send Gulley out to the truck. Ivey testified that Davis acknowledged he had cocaine
Gulley claims that after getting into the truck she bought the cocaine, pаid Davis the money, left the truck, and handed the cocaine to Ivey. Ivey testified that he saw Gulley pick up something from the dashboard of thе truck. Davis testified that when Gulley got into the truck, he told her not to ask him for any more drugs, or that he would go to the police and swear out a warrant against her. Davis testified that Gulley had doggedly persisted in trying to buy drugs from him, and had also asked him to obtain “hot” credit cards for her. Gulley denied having contacted Davis frequently, or having asked him for credit cards, but admitted having sold marijuana.
Ivey also testified that on January 5, 1984, in a restаurant parking lot, Gulley sought to buy cocaine from Davis again but that Davis had none. The State alleges that on that occasion Davis gаve Gulley a marijuana cigarette. Davis denies having given Gulley the marijuana when he met her on January 5, and claims instead that testimony by police agents concerning the incident was inadmissible hearsay. We agree.
Gulley did not testify concerning the January 5, 1984, meeting with Davis in the restаurant parking lot. The trial court allowed police agents Jay Ivey and Tom Little and Deputy Walter Clem Price to testify about the incident even though they had no direct knowledge of what occurred. None of the officers saw or heard what transpired between Gulley and Davis at the January 5 meeting. The trial court ruled that their testimony was admissible, nevertheless, because “with the defense of entrapment almost anything this defendant has done in the way of narcotics violation[s] is admissible.” The State also argues that because Davis testified that hе did not sell marijuana to Gulley, the testimony of the police agents and Deputy Price was admissible to rebut Davis’s assertion. Both the trial court and the State are incorrect.
The defendant did not raise the defense of entrapment; therefore, the court’s rationale that the testimony is admissible when a defense of entrapment is asserted was inapplicable here. Davis testified at trial in his own defense and denied selling cocaine to Gulley on December 3, 1983, as charged in the indictment. We held in Owens v. State,
Although we are unable to find an Alabama case directly on point, the decided weight of authority is to the effect that the defеnse of entrapment is not available, and requested charges on the law of entrapment are properly refused, where the defendant takes the witness stand and denies the commission of the offense charged. [Citations omitted.]
Owens, supra,
In Norris v. State,
“The State may, in the discretion of the trial court, introduce in rebuttal any competent evidence which explains or is a direct reply to or a contradiction of material evidence by the defendant.” Sprinkle v. State,368 So.2d 554 (Ala.Cr.App.1978), writ quashed,368 So.2d 565 (Ala.1979) (emphasis added).
Id. at 650. Over the objection of defense counsel, the State succeeded in intrоducing hearsay testimony intended to rebut Davis’s direct testimony that he had never sold marijuana to Gulley. On cross-examination, Davis testified that he never gave or sold marijuana to Gulley. The trial court erroneously permitted the introduction of hearsay testimony to rebut Davis's testimоny. As noted, the court’s rationale for allowing the hearsay testimony was wrong, because Davis did not raise the defense of entrapment. Furthermore, contrary to the circumstances presented in Norris, supra, the hearsay testimony by the officers was not competent evidence. There is no question that the officers’
We have held that when a persоn is on trial for the commission of a particular crime, evidence of another criminal act
“is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This rule is generally applicable whether the other crime was committed before or after the one for which the Defendant is рresently being tried.”
Ex parte Tucker,
In short, the hearsay testimony by the officers was not admissible on the grounds that Davis had raised entrapment as a defense — he had not. It was not competent evidence to rebut Davis’s testimony that he never gave or sold Gulley marijuana, because none of the officers had personal knowledge of what transpired at the January 5, 1984, meeting. In any event, testimony concerning a separate and completely unrelated criminal act was not admissible.
Because of our resolution of petitioner's first two issues, we do not reach petitioner’s final issue.
REVERSED AND REMANDED.