Berry v. State

434 So. 2d 295, 1983 Ala. Crim. App. LEXIS 4596
CourtCourt of Criminal Appeals of Alabama
DecidedJuly 5, 1983
Docket3 Div. 764
StatusPublished
Cited by3 cases

This text of 434 So. 2d 295 (Berry v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. State, 434 So. 2d 295, 1983 Ala. Crim. App. LEXIS 4596 (Ala. Ct. App. 1983).

Opinion

TYSON, Judge.

Lynn Berry was charged by indictment with the unlawful sale of marijuana, contrary to the provisions of Act No. 1407, Section 401(a), Acts of Alabama 1971, Regular Session.

The jury found the appellant “guilty as charged in the indictment”, and following a sentencing hearing, the appellant was sentenced to seven years’ imprisonment in the penitentiary.

Her retained counsel gave oral notice of appeal at this time. Thereafter, some confusion arose as to whether or not the appellant would be able to pay this counsel and subsequently this counsel requested the trial court to appoint counsel to perfect an appeal but this notice and the determination of the appellant’s indigency was not originally timely. This court made an earlier determination to this effect in an opinion Berry v. State, 395 So.2d 159 (Ala.Cr.App.1981). Thereafter, the appellant’s attorneys filed a Petition for Writ of Habeas Corpus in the United States District Court in Montgomery and that Honorable Court determined that the appellant had been indigent, in fact, as of the time of the original adjudication of her guilt and notice of appeal and directed that she be furnished with an “out of time appeal”. This appeal follows.

Allen Raymond Adair testified that he was employed by the Department of Forensic Science, at Montgomery, as a Criminologist. He testified that he examined some green plant material which had been left at his department office and determined that the same weighed 27.9 grams and in fact, the material was marijuana, having performed several tests thereon. Mr. Adair stated this material had been delivered to him by Mr. Thomas Hopen who worked [296]*296with him in the Department of Forensic Science.

Mr. Thomas Hopen testified that he received some green plant material on February 15, 1979, from an agent named Larry Williams, that he marked the date of receiving this material and delivered it to Mr. Adair for examination the following day.

Mr. Larry Williams, an ABC agent, testified he delivered some green plant material to the Department of Forensic Sciences to Mr. Hopen on February 15,1979. Mr. Williams further stated that he received this same green plant material on February 13, 1979, at 11:00 a.m., from fellow ABC agent, J.D. Ivey.

ABC Agent J.D. Ivey testified that he was working undercover in Montgomery, Alabama, during the months of December, 1978 and January and February, 1979. He testified his duties were with the Montgomery Police Department and that he made a purchase at an apartment in the Woodley Downs Apartments, No. 513 or 503, on February 12, 1979, at an apartment which he had been told had been rented by the District Attorney’s office.

Mr. Ivey stated that he met the appellant, Lynn Berry, at that time at the apartment at approximately 8:35 p.m. He stated that he purchased one ounce of marijuana for $35.00, handing her two $20 bills and receiving from her one $5 bill. Agent Ivey testified he delivered this marijuana to Agent Larry Williams the following day at the ABC warehouse at approximately 11:00 a.m. He testified the purchase of this green plant material took place in Montgomery County, Alabama.

On cross-examination, Agent Ivey denied having handed the money to one Larry Payne, a fellow officer, but insisted that he turned the monies over to the appellant, Lynn Berry, on the occasion of the purchase.

He testified he was aware that an additional purchase of marijuana had been made from her by Larry Payne at a different time and location.

The appellant, following the close of the State’s evidence, made a motion to quash the evidence and for a motion for a judgment of acquittal. These motions were overruled by the trial court.

James Gamble, a lieutenant with the Montgomery Police Department, testified he first met the appellant, Lynn Berry, when she was working as desk clerk at the Southwest Holiday Inn in Montgomery. He testified that from time to time she was most helpful in supplying information which ultimately led to arrests and convictions of several parties who were dealing in drugs in the Montgomery, Autauga and El-more County areas. He stated that he did not recall any conversation with her concerning any drug purchases at the Woodley Downs Apartments, nor had he authorized her to make any purchases or deal in any narcotics on behalf of the police department.

Charles Michael Armstrong, a former Montgomery police officer, testified that during 1978 and 1979 the appellant had worked as an informant and provided several bits of information which ultimately led to arrests and convictions in drug related cases in the Montgomery area. He did not recall any conversations, however, with Lynn Berry concerning a possible drug operation at the Woodley Downs Apartments complex. He specifically stated that he had not given her any permission whatever to attempt to sell or purchase narcotics or drugs.

David Green, a Montgomery police officer, testified that Lynn Berry had assisted the department for several years in providing information which ultimately led to convictions in drug cases. He further testified that he had not given her permission to sell or purchase drugs as an undercover agent for the department.

Lynn Berry testified that she lived in the Broadmoor Apartments in Montgomery and was currently employed at the Piknik Products as a secretary. She stated that she was divorced and the support of her six-year-old son.

[297]*297She recalled the events of February 12, 1979 and stated that she had gone to the Woodley Downs Apartments with one Tim Davis. She stated that a Tim Bodine was not there at the apartment at the time. She did testify that there was a Larry Payne, whose nickname was “Gaitor”, also there. She testified that J.D. Ivey had telephoned her and asked her to come over and in fact he asked her to have a meal with him and Mr. Payne that night. She stated she did not try to get in touch with David Green on the night in question, but she did try to get hold of Mike Armstrong and ask him to get in touch with one of the other officers, specifically a Nick Royal, who worked with the Sheriff’s Department. She testified that she went to the apartment and was seated in the dining room with the two parties Ivey and “Gaitor”. She stated that “Gaitor” or Payne, asked her where he could get some “coke or a bag.” She said that she told him that she did not know and that at that point Tim said that he could get one. She stated that she left and went by her brother’s apartment and again tried to call Mike Armstrong and told him they were trying to make a play. She stated that they were also talking about “a sawed-off shotgun that Tim had” and said that he would buy it and get it later on. She testified that when she returned and went into the living room some money did change hands, but she said that it was Larry Payne who handed the money over and that she herself did not receive any money, nor did she subsequently receive any part of the monies whatever. She stated that they had also called her on a later date again about a purchase. She said that a subsequent case was dismissed at preliminary by the trial judge. Ms. Berry stated that she had never received any money for drugs nor had she made any sales or dealt in any, other than to provide information to the Montgomery Police Department. She further stated that she had been employed at Piknik Products for over a year at the time of trial and had formerly worked at a jewelry store.

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Related

Middleton v. State
495 So. 2d 726 (Court of Criminal Appeals of Alabama, 1986)
Scofield v. State
496 So. 2d 96 (Court of Criminal Appeals of Alabama, 1986)
Adkins v. State
481 So. 2d 431 (Court of Criminal Appeals of Alabama, 1985)

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Bluebook (online)
434 So. 2d 295, 1983 Ala. Crim. App. LEXIS 4596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-state-alacrimapp-1983.