Green v. StateGreen v. State
King Solomon Green, Sr., the appellant, was convicted of two counts of selling cocaine in violation of
I
The appellant contends that the record “does not affirmatively show that the State‘s witnesses were sworn.” Appellant‘s brief at 4. However, immediately preceding the testimony of each of the State‘s witnesses, there appears in the transcript the witness‘s name, followed by “of legal age, having been previously sworn, took the stand and testified as follows.” (Emphasis added.) We note that this same recitation also precedes the testimony of the two defense witnesses, and we deem it sufficient to indicate that the witnesses were sworn as required by
Moreover, there was no objection below on the ground that the State‘s witnesses were not sworn. Compare Saxton v. State, 389 So.2d 541, 543 (Ala.Cr.App. 1980). By failing to object, the appellant waived the issue of any alleged failure to place the witnesses under oath. Merton v. State, 500 So.2d at 1306.
II
The undercover officer who testified that she twice purchased cocaine from the appellant also testified that she was wearing “a wire” and that her conversations with the appellant at the time of both purchases were recorded. When the prosecution offered the tapes of these conversations, the appellant objected on the grounds that the quality of the tapes was poor, that one or both tapes contained hearsay material, and that the State had failed to prove a chain of custody for the tapes. The trial court agreed that one tape was of very poor quality and sustained the appellant‘s objection to that tape. The other tape was admitted and played for the jury.
On appeal, the appellant asserts that this tape was improperly admitted because the prosecution failed to properly authenticate it. Because this issue was not raised below; it is not preserved for our review. “The statement of specific grounds of objection waives all grounds not specified and the trial court will not be put in error on grounds not assigned at trial.” Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987). Accord, Harrison v. State, 560 So.2d 1124, 1127 (Ala.Cr.App. 1989); Chisler v. State, 553 So.2d 654, 660 (Ala.Cr.App. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 2572, 109 L.Ed.2d 753 (1990).
III
As noted above, the trial court sentenced the appellant to five years’ imprisonment on each conviction, with the sentences to run consecutively. The crime for which the appellant was convicted, selling cocaine, is a Class B felony,
“In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was on the campus or within a one-mile1 radius of the campus boundaries of any public or private school, college, university or other educational institution in this state.” (Emphasis and footnote added.)
This “schoolyard enhancement” statute provides “for an extra five years to be ‘added on’ or ‘tacked on’ to the existing sentence.” Dixon v. State, 572 So.2d 512, 513 (Ala.Cr.App. 1990).
The trial judge declined to enhance the appellant‘s sentence under
“[T]he legislature has taken upon itself to act as the court in statute, and it says, ‘It is hereby imposed a penalty of five years incarceration.’ So if the legislature wants to do the imposition of sentencing, I‘m going to let the legislature do it. I am not going — I am not called upon by that statute to impose any kind of sentence. The legislature has imposed the sentence, and so the legislature can impose.”
This Court has previously held that
We do not think that the legislature intended by
REMANDED WITH DIRECTIONS.
All Judges concur.