445 So. 2d 981 | Ala. Crim. App. | 1984
On November 29, 1983, this court unanimously affirmed this case without opinion. 443 So.2d 67.
Because counsel has filed a request for statement pursuant to Rule 39 (k) and Rule 40, A.R.A.P., this court sets forth the following as its opinion.
On the afternoon of March 3, 1982, Birmingham Police Officer Wayne Ellis stated that he had been working undercover in the Montgomery-Autauga County area, helping to make purchases in drug cases. Officer Ellis was on loan to the Prattville Police Department when he went to the home of the appellant, just off Highway 14, near Prattville. There he purchased approximately one-quarter pound of marijuana and paid the appellant $125.00. Ellis made a positive in-court identification of appellant, gave his physical description, hair style and mustache, and stated that shortly after leaving appellant's home he met Officer R.C. Martin and turned over the marijuana to him.
Officer Martin corroborated this testimony and stated that he had remained in the area and showed Officer Ellis where appellant's home was and had shown Officer Ellis a photograph of appellant prior to his making the purchase in question.
Officer Martin then stated that he turned over the marijuana to the toxicologist's office, where Allen Adair examined same, and testified that such was, in fact, marijuana.
A motion to exclude the State's evidence was overruled.
On cross-examination of Officer Ellis, appellant's counsel brought out the fact that Officer Ellis had been to appellant's home on two occasions, and on the second occasion, made a second purchase of marijuana.
The appellant's defense was that of alibi; namely, that he was living at the home of his current wife who was at the time his girlfriend on the date of the sale, March 3, 1982. He then presented the testimony of *983 two brothers, a cousin and a neighbor, all of whom corroborated his story that he had a brother who looked just like him and it was his brother who was at home on that date, and if any sale was made, that the brother made it. The appellant did admit on cross-examination that he owned a green Lincoln automobile matching the description given by Officer Ellis during his testimony on direct for the State.
There was no exception to the oral charge of the court.
"Q. Do you know where your grandson works?
"A. Well, I don't know. He's been out of a job. He had a bad hand.
"Q. All right. Do you know where he works — where he worked on March the 3rd, 1982 — where he was working, if you know?
"A. Well, I wouldn't know. He picked up little jobs, but he didn't have a standard job."
This statement, along with testimony from Officer Wayne Ellis that he had made two buys from Jimmy Ford at times when Ford claimed to be at work, and that he saw Ford in his car also at a time when he claimed to be at work, supported an inference during the State's closing argument that, "the only regular job he had was dealing in dope." Ford himself testified that his brother was in jail for possession of marijuana, that he had a prior felony conviction for possession of marijuana, that he was arrested at his mother's house when the police executed a search warrant there and marijuana was supposedly found, and Officer Ellis stated he purchased marijuana from Ford on two different occasions. Obviously, no error occurred from the State's closing remarks because the basis for such an inference came mainly from the appellant's own witnesses. Chambers v.State,
We have carefully examined this record and find no error. This judgment is due to be and the same is hereby affirmed.
APPLICATION FOR REHEARING OVERRULED; AFFIRMED.
All the Judges concur.