442 So. 2d 133 | Ala. Crim. App. | 1983
Trafficking in cannabis; sentence: ten years' imprisonment and $25,000 fine.
On October 30, 1981, Alabama Bureau of Investigation narcotics unit investigator Grady Gibson executed a search warrant at the residence of appellant located in Eclectic. Discovered in a greenhouse was over one hundred pounds of marihuana as well as other items and paraphernalia indicating the presence of a large-scale trafficking operation. Appellant was subsequently arrested and charged with the instant offense.
Initially, the testimony of Gibson unequivocally established that only one search of appellant's residence occurred. No evidence was offered to rebut or contradict Gibson's testimony. Thus, nothing appears *135 in the record to substantiate appellant's claim.
Although not properly preserved for our review, see Dickersonv. State,
We note that the warrant authorized the search of "the house trailer, and outbuilding[s], including one . . . green house, automobiles, and the premises located at the residence of . . ." appellant. We find that the use of the term "residence" by Gibson in his affidavit would not confuse or mislead the magistrate issuing the warrant or cause any misidentification of the premises. Its use was not improper. See generallyNeugent v. State,
There is no constitutional requirement that an affidavit submitted for issuance of a search warrant for marijuana, based upon information received from a confidential informant, allege the informant's expertise in identifying marijuana. All that is constitutionally required is that the affidavit support a finding that the informant is reliable or credible and has a sufficient basis of knowledge for the information supplied.1 See numerous authorities cited at 17A Alabama Digest Searches Seizures 3.6 (3).
There is no basis in the record for appellant's conclusion that since the informant supplied Gibson with the name "Phillip Lyan,"2 rather than his correct name, the informant was in actuality an agent for the State, i.e., a law enforcement officer. This allegation is not supported by the record.
Gibson's affidavit fully met the requirements of the Aguilar-Spinelli "two prong" test,3 a substantial basis for believing the informant's information existed therein.McClellan v. State,
In conclusion, we find the affidavit sufficient to establish probable cause for issuance of the search warrant. We find the warrant to have been properly executed with a proper return being made. Consequently, the seizure of the marijuana and other items was legal.
Gibson testified in detail to the manner in which he became possessed of the photographs. Gibson stated that the photographs were found enclosed in a manila envelope inside a green leather case discovered in one of the bedrooms of the trailer. The case also contained various assorted papers and articles dealing with the cultivation of marijuana. Gibson was unaware of the photographs until a short time after the search, when he inventoried the contents of the case. He stated that once seized the photographs remained exclusively under his control and custody.
Gibson stated that he observed the greenhouse at appellant's residence and took several photographs of its exterior and interior, which were properly admitted into evidence. He stated that the greenhouse depicted in the photographs seized from appellant's trailer was the same as the one personally observed and photographed by him on October 30.4 Gibson noted that the photographs of the interior of the greenhouse seized on October 30 depicted a large quantity of marijuana plants at various stages of growth, a condition which he also observed on October 30. However, Gibson could not state when the seized photographs were taken, who took them, or whether the marijuana plants depicted therein were the same ones that he personally observed on October 30. Gibson noted that the marijuana plants depicted in the seized photographs were, by and large, much smaller and less mature than those seized on October 30.
"As a general rule, photographs are admissible in evidence, if they are properly verified either by the photographer or a person who is familiar with the subject of the photograph and if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Photographs may be admitted if they tend to shed light on, strengthen, or to illustrate other testimony in the case.
"It is within the trial court's discretion to determine the sufficiency of preliminary proof offered to identify photographs and to show that they fairly and accurately represent what they purport to be. Only when its exercise is abusive will such be overturned." (Citations omitted.) Donner v. State,
409 So.2d 461 ,464 (Ala.Cr.App. 1981).
"The time in relation to the main event at which photographs were taken does not necessarily control their admissibility. The important question is the probability of change in the conditions or objects shown." McKee v. State,
The record is clear that Gibson was sufficiently familiar with the general appearance and dimensions of the greenhouse to determine whether it had been substantially altered after the taking of the photographs. In fact, his testimony established that no change of its condition occurred. He properly identified the scene depicted in the seized photographs. The photographs are relevant to the material issue of appellant's possession of the greenhouse. It is immaterial whether the marijuana plants depicted in the photographs are the same as those seized by Gibson as long as appellant was in possession of the contents of the greenhouse on October 30, 1981. The record unequivocally established the fact of appellant's possession. Consequently, we find no error in their admission.
The evidence adduced at trial revealed that inside appellant's trailer were found plastic freezer and sandwich bags of assorted sizes, bags with marijuana residue therein, and a quantity of marijuana contained in a plastic bag. Seized from the greenhouse was over one hundred pounds of marijuana. Its value was estimated at between $40 to $100 for an ounce and $700 to $1,000 for a pound. The above argument was a reasonable and legitimate inference arising from the evidence and, therefore, proper. Sanders v. State,
"HON. JANICE WILLIAMS: Mr. Drinkard asked you and all the other members of the jury venire this morning if you had children between the ages of 19 and 25.
"HON. EDWARD W. DRINKARD: Not any evidence before this jury in this case.
"THE COURT: Overruled.
"HON. JANICE WILLIAMS: He wanted to know who had children between the ages of 19 and 25, because ya'll are the ones who _____
"HON. EDWARD W. DRINKARD: I object to that being improper argument.
"HON. JANICE WILLIAMS: Judge, it's inference.
"THE COURT: She can argue — overruled."
Appellant's objection, quoted above, was general in nature; assigning no specific grounds thereto. On appeal, however, appellant for the first time specifically contends that the above quoted remark "was calculated to create ill will or prejudice against Appellant's Counsel and to make the tacit implication that the jurors were being unscrupulously deceived thereby."
As to the latter ground asserted by appellant, although not properly before us, we find nothing in the comment, either directly or indirectly, to support his contention.
While the State's comment is directed to matters not presented as evidence to the jury, the record reflects that appellant's counsel did, in fact, inquire of the venire that which is encompassed in the above remark. The jury had knowledge of the matter contained in the comment prior to rebuttal argument of the State. Thus, the State did not inform the jury of anything of which it was not already aware.
From the posture of the record before us, we can only speculate as to the inference the State was attempting to draw from its comment. By objecting at the time he did, appellant prevented the State from making its inference and, thus, possibly injecting immaterial and irrelevant material into the trial. Consequently, we cannot ascertain the context in which the remark was made. See Barbee v. State,
A careful review of the above quoted comment, in light of the whole record, leads us to the conclusion that the remark was not prejudicial to appellant. No reversible error occurred.
There appearing no errors on review of the record filed before us, this cause is hereby affirmed.
AFFIRMED.
All the Judges concur.