State v. BattleState v. Battle
A jury convicted the appellant Ernest Battle of possession of cocaine for distribution in proximity of a school. The dispositive questions on appeal relate to the validity of the search of Battle’s home, the admission of the evidence concerning the distance from Battle’s home to a school, and the refusal of the trial court to allow Battle to withdraw from evidence an exhibit introduced by Battle during the State’s case. We affirm.
I.
We find no merit in Battle’s argument that the trial judge erred in finding that he freely and voluntarily consented to the search of his home. Battle claims the officers obtained his consent to the search of his home by threatening to arrest his girlfriend and turn her children over to the Department of Social Services (DSS) and by threatening to seek a search warrant if he did not consent to the search.
The question of whether a consent to a search is either voluntary or the product of duress or coercion is one of fact to be determined by the trial judge “from the ‘totality of the circumstances.’ ” State v. Wallace,
As to the officers telling Battle that either he could sign a written consent to search or they would seek a search warrant, the explanation to Battle by the officers of their options did not invalidate Battle’s consent to the search of his home. The officers also advised Battle of his Miranda rights before the search and they advised him that he could consent or not to the search and could stop the search whenever he wanted. Moreover, Battle gave his written consent to the search and he assisted the officers in their search by pointing out the particular location of the cocaine in a dresser. See id. at 551,
II.
We also find no merit in Battle’s contention, to quote the exception raising it, that “[t]he trial judge erred in allowing a police officer to testify, over objection, as to
The trial judge ruled the question of whether a person who bases his testimony regarding distance on an odometer reading checked the odometer for accuracy goes to the weight of the person’s testimony and not to its admissibility. We agree. See Hines v. State, 487 So. (2d) 970 (Ala. Crim. App. 1986), vacated on other grounds sub nom. Hines v. Alabama,
In any case, the odometer evidence that the distance from the school to Battle’s house was “approximately four tenths” of a mile was cumulative to other evidence found in the record and received either without objection or a motion to strike. When the officer who testified as to the odometer reading was asked on cross-examination whether he thought the school “might be within half a mile” from Battle’s residence, he answered “Yes.” See 32 C.J.S. Evidence § 546(16), at 139-40 (1964) (an ordinary witness may give his estimate of distances, provided the witness is cognizant of the facts on which the opinion is based); cf. Harmon v. Columbia & G.R. Co.,
III.
We likewise find no merit in Battle’s contention, again quoting from the exception raising it, that “[t]he trial judge erred in refusing [his] request to withdraw an
The trial judge refused Battle’s motion to withdraw the exhibit, upon which Battle cross-examined the witness through whom it was introduced, because he did not think he had the discretion to allow it to be withdrawn once it had been introduced. But see 23A C.J.S. Criminal Law § 1210, at 86-87 (1989) (“It is within the discretion of the court to permit evidence to be withdrawn, by the party eliciting it.”).
Apart from the fact that Battle’s exception does not really preserve the question argued, i.e., that the trial judge abused his discretion in refusing to exercise discretionary authority when it is warranted, the refusal of the trial judge to allow Battle to withdraw the exhibit did not prejudice Battle. Battle waived the right to make the concluding argument when he intentionally introduced the exhibit and not when the trial judge denied his request to withdraw it. See State v. Gellis,
Affirmed.