741 So. 2d 1112 | Ala. Crim. App. | 1999
The appellant, Ed Franklin Harris, was convicted of trafficking in cocaine. He was sentenced on December 4, 1998, to life imprisonment upon application of the Habitual Felony Offender Act ("HFOA").
In Allen v. United States,
"`The general rule in Alabama has been that it is not improper for the trial court to urge upon the jury the duty of attempting to reach an agreement or verdict as long as the judge does not suggest which way the verdict should be returned.'" Kingv. State,
Following approximately 1 hour and 40 minutes of deliberations, the jury communicated to the trial court that it did not think it was going to reach a verdict. (R. 278.) The trial court then instructed the jury as follows:
"It is your duty to reach a verdict if you can do so consistent with your conscience. I want you to lay aside, please, if there is any such thing in there, pride of judgment or opinion, if you will. Examine your differences. Harmonize the differences if possible. Listen to each other's arguments. Do not — please do not adhere to an opinion through stubbornness. Consider the age of the case, the time that has been allocated to it. It *1114 is the duty of the majority to consider the view of the minority. It is also the duty of the minority to consider the views of the majority on the jury.
"A jury, as you well know, is a deliberative body. Each juror should hear the arguments of the other folks on the jury, and the impressions made on them by the evidence. When there is disparity of opinion, confer together, paying a proper respect to each other's opinions in listening to each other's to the end of reaching a unanimous verdict. If the majority is of one opinion, the jury can take that fact into consideration in your deliberations. Jurors dissenting from the majority should consider whether a doubt in their own mind is a reasonable one when it makes no impression upon the minds of so many other jurors equally honest, intelligent, and sincere who have heard the same evidence with the same attention and an equal desire to arrive at the truth under sanction of the same oath. So, while a minority should not, cannot, and will not be coerced by me into an agreement with the majority, a minority should seriously consider and ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment which is not concurrent by most of those with whom they are associated."
(R. 278-79.)
In Slaton v. State,
We are not convinced that the Allen charge impermissibly suggested that the jury should reach a guilty verdict. The trial court made no indication in its charge as to whether the verdict rendered should be guilty or not guilty. Further, the trial court was without knowledge as to the number of jurors indicating they would vote for a guilty verdict versus the number of jurors who would case a vote for a not-guilty verdict. The trial court stated, before giving the Allen charge, "of course, we don't know what the tally is back there but the latest communication was that you didn't think you were going to reach a verdict." (R. 277-78.) At no time did the trial court suggest that those in the minority represented the not-guilty verdict. This court finds that, contrary to the contentions of the appellant, the Allen charge did not suggest to the jury the ultimate guilt or innocence of the appellant. Thus, we find that no error occurred in the Allen charge.
The HFOA and the provisions of §
The appellant was properly sentenced.
"In evaluating the sufficiency of the evidence to convict the appellant, we view the evidence in `the light most favorable to the state,' as the jury may have interpreted it. McMillian v.State,
Jenkins, 627 So.2d at 1040, quoting McMillian v. State,"`As long as the circumstantial evidence points to the guilt of the accused, it will support a conviction as strongly as direct evidence. In reviewing a conviction based on circumstantial evidence, "[t]he test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.'"
In Zumbado v. State,
"`[T]he weight of the evidence' refers to `a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.' Tibbs v. Florida, 457 U.S. [31], 37-38, [
102 S.Ct. 2211 ,2216 ,72 L.Ed.2d 652 (1982)]. . . . We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. . . . `The credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.' Harris v. State,513 So.2d 79 ,81 (Ala.Cr.App. 1987)."
(Citations omitted.)
Section
The evidence pertinent to the appellant's conviction indicated the following. Detective Jesse Wells, of the Birmingham Police Department, met with an informant, Jimmy Dean Collier, in order to set up a purchase of cocaine. Wells proceeded to *1116 set up an undercover narcotics buy, which was to take place at the Chesterfield Motel on the day following their initial contact. Wells testified that when they saw the appellant at the motel the next day, Collier proceeded to meet with the appellant. After a brief discussion between Collier and the appellant, Collier instructed Wells to "get the scales and come with him". (R. 115.) Wells and Collier entered room 15 of the motel. Wells then observed Henry Yerby and the appellant talking outside the motel room. According to Wells, during the conversation, the appellant "pointed to room 15 at this time." (R. 119.) Yerby testified that the appellant asked him to carry a package to room 15. Yerby identified State's Exhibit 1 at trial as the plastic bag with cocaine that the appellant asked him to deliver to Wells. (R. 197-98.) Wells testified that Yerby entered room 15 and "once he told me that everything was cool, he basically reached into the front of his pants and he removed a clear plastic bag containing an off-white substance." (R. 121-22.) Once the cocaine was weighed, the arrest team moved in. At trial, the witnesses identified the appellant. The state also produced a copy of an audiotape from a wire Wells was wearing during the transaction. Additionally, John Brunner, a forensic scientist for the Alabama Department of Forensic Sciences, testified that the substance contained in State's Exhibit 1 was 126.73 grams of cocaine.
The appellant argues that the only direct evidence produced at trial was the testimony of Henry Yerby, a convicted felon. First, as discussed above, the circumstantial evidence points to the guilt of the accused. "[C]ircumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused." Stephens v. State,
Viewing the evidence in a light most favorable to the state, we conclude there was sufficient evidence presented by the state, which, if believed by the jury, would sustain the appellant's conviction. We find that the jury reasonably concluded that the appellant was guilty of the crime of trafficking.
AFFIRMED AS TO CONVICTION AND SENTENCE; REMANDED WITH *1117 DIRECTIONS TO IMPOSE FINE*.
Long, P.J., and McMillan, Cobb, and Baschab, JJ., concur.