Dix v. State

580 So. 2d 81, 1991 Ala. Crim. App. LEXIS 8, 1991 WL 29392
CourtCourt of Criminal Appeals of Alabama
DecidedFebruary 1, 1991
DocketCR 89-1427
StatusPublished

This text of 580 So. 2d 81 (Dix 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
Dix v. State, 580 So. 2d 81, 1991 Ala. Crim. App. LEXIS 8, 1991 WL 29392 (Ala. Ct. App. 1991).

Opinion

JAMES H. FAULKNER, Retired Justice.

Carolyn Denise Dix was indicted for possession of marijuana for other than personal use in violation of § 13A-12-213, Code of Alabama 1975, and for possession of cocaine in violation of § 20-2-80, Code of Alabama 1975. The cases were consolidated for trial, and the jury found Dix guilty of possession of marijuana for personal use and guilty of possession of cocaine. Dix was sentenced to five years’ imprisonment on the cocaine conviction, with this sentence to be split, with six months to be served in prison and three years to be served on probation. Dix was also sentenced to six months’ hard labor on the [83]*83marijuana conviction, said sentence to run concurrently with the sentence on the cocaine conviction. Four issues are raised on appeal.

I.

Dix contends that her admission that she lived in the house in which the illegal drugs were found was procured in violation of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was therefore inadmissible at trial. We disagree.

“The Miranda procedural safeguards are required only when a suspect is interrogated in a custodial setting. Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30. ‘Custodial interrogation’ was defined by the Miranda Court as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, [714] 50 L.Ed.2d 714 (1977).”

Cork v. State, 433 So.2d 959, 961 (Ala.Cr.App.1983).

The inquiry of Deputy Sykes during the search of the premises whereby he asked Dix her name and address did not constitute interrogation or violate the Miranda rule, and the response of Dix that she lived at the premises being searched was admissible. “The questioning was in the nature of general on-the-scene investigation. Miranda does not prevent traditional investigatory functions such as general on-the-scene questioning.” Bui v. State, 551 So.2d 1094, 1108 (Ala.Cr.App.1988), aff’d, 551 So.2d 1125 (Ala.1989).

II.

Dix contends that the state failed to comply with Rule 18 of the Alabama Rules of Criminal Procedure, Temporary, by refusing to allow Dix to discover the following information prior to trial: (1) a business record of the Alabama Power Company which showed Dix’s address for billing and electrical services as being the premises in which the illegal drugs were found; (2) the items seized pursuant to the execution of the search warrant; and (3) the statement made by Dix to Deputy Sykes during the search.

(1) With respect to the Alabama Power Company business record, Rule 18.1(c), A.R.Cr.P.Temp., provides that the defendant be permitted “to analyze, inspect, and copy or photograph books, papers, documents, photographs, tangible objects, controlled substances, buildings or places or portions of any of these things, which are within the possession, custody, or control of the state” (emphasis supplied). The Alabama Power Company business record, which was in the possession of Mr. Ivey Benton as supervisor of customer accounting of Alabama Power Company, was not in the possession or control of the state and hence not discoverable under Rule 18.1, A.R.Cr.P.Temp.

(2) With respect to the items seized in the search, it is undisputed that a detailed list of these items was contained on the return filed by the sheriff’s office in Dix’s consolidated case files. Defense counsel thus had constructive knowledge of the identity of these items from the inception of Dix’s cases, but no request to inspect these items was ever made.

Dix was initially represented by Roger Apell, who represented her through the preliminary hearing phase. Subsequently, Wilson Dinsmore was retained to represent Dix at trial and on appeal. Dinsmore, who clearly had time to inspect the items enumerated on the return prior to trial, instead sent a certified letter to the district attorney’s office less than one month before trial. In the letter, Dinsmore requested, inter alia, that he be apprised of “any papers, books, documents, tangible objects or any other such items that are in your possession or the possession of law enforcement [sic] or which you intend to offer at trial that would tend to tie this Defendant to that residence or to any items taken from that residence.” Nowhere in this letter does Dinsmore request an inspection of the items seized in the search of the residence—in fact, Dinsmore’s use of the phrase “items ... that would tend to tie [84]*84this Defendant ... to any items taken from that residence” implies that Dinsmore wanted to discover the identity of any incriminating evidence obtained outside the parameters of the search warrant.

At the beginning of Dix’s consolidated trial, Dinsmore made an oral motion in limine to prevent the state from introducing any items which were seized by the police in execution of the search warrant because the prosecutor failed to disclose these items to defense counsel prior to trial in accordance with his request in the certified letter.

The prosecutor stated to the court that because the list of items seized during the search was part of the court record and was constructively known to defense counsel, he construed Dinsmore’s letter to mean the identity of any items outside the search warrant which might link Dix to the premises searched or the items seized therein.

Dinsmore then admitted to the trial court that he remembered looking at the search warrant itself in the court’s files but said that he could not specifically recall looking at the list of items contained on the return. The court then denied Dix’s motion in li-mine and provided defense counsel an opportunity to see the items before the trial started.

We therefore hold that because defense counsel never requested an inspection of the items seized during execution of the search warrant, which items defense counsel had constructive knowledge of through publication in the court files, no violation of the disclosure provisions of Rule 18, A.R. Cr.P.Temp., occurred.

(3) With respect to Dix’s admission that she lived in the house in which the illegal drugs were found, Rule 18.1(a)(2), A.R.Cr.P.Temp., requires the district attorney “[t]o disclose the substance of any oral statements made by the defendant before or after arrest to any law enforcement officer, official, or employee which the state intends to offer in evidence at the trial.”

In the certified letter to the district attorney’s office, defense counsel specifically requested that he be informed of “any written, recorded or oral statements made or purportedly made by the Defendant or co-Defendants either before or after arrest to any law enforcement officers.”

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Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Oregon v. Mathiason
429 U.S. 492 (Supreme Court, 1977)
Bui v. State
551 So. 2d 1094 (Court of Criminal Appeals of Alabama, 1988)
Ex Parte Frith
526 So. 2d 880 (Supreme Court of Alabama, 1988)
Cork v. State
433 So. 2d 959 (Court of Criminal Appeals of Alabama, 1983)
Miller v. State
440 So. 2d 1127 (Court of Criminal Appeals of Alabama, 1983)

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Bluebook (online)
580 So. 2d 81, 1991 Ala. Crim. App. LEXIS 8, 1991 WL 29392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dix-v-state-alacrimapp-1991.