Lanza v. State

579 So. 2d 8, 1990 Ala. Crim. App. LEXIS 1689, 1990 WL 210528
CourtCourt of Criminal Appeals of Alabama
DecidedOctober 26, 1990
DocketCR 89-497
StatusPublished
Cited by2 cases

This text of 579 So. 2d 8 (Lanza 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
Lanza v. State, 579 So. 2d 8, 1990 Ala. Crim. App. LEXIS 1689, 1990 WL 210528 (Ala. Ct. App. 1990).

Opinion

McMILLAN, Judge.

The appellant was convicted of the unlawful possession of cocaine, in violation of § 13A-12-212, Code of Alabama 1975. He was sentenced to 10 years in the state penitentiary.

I

The appellant argues that the State failed to provide sufficient evidence to sustain his conviction of the possession of cocaine. However, the record indicates that the appellant filed a motion to exclude the State’s evidence, arguing only that the State’s evidence had been obtained as a result of an illegal search and seizure. The appellant never argued or stated that the State’s evidence was insufficient to sustain the conviction. Therefore, this issue is not preserved for review.

“ ‘To preserve the issue for appeal, it is necessary for defendant to state his grounds upon moving to exclude evidence; however, it is not necessary to draw the trial court’s attention to the particular defect. It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case. Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); see also, R. Williams, Williams’ Alabama Evidence § 308 (1967).’ ”

Sankey v. State, 568 So.2d 366 (Ala.Cr. App.1990), quoting Ex parte Maxwell, 439 So.2d 715, 717 (Ala.1983). See also Fortier v. State, 515 So.2d 101, 104 (Ala.Cr.App. 1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 776, 98 L.Ed.2d 862 (1988).

“In order to preserve the issue of the sufficiency of the evidence for review, the motion for judgment of acquittal should state ‘the grounds therefor.’ Rule 12, Alabama Rules of Criminal Procedure (Temp.). ‘It is well settled in Alabama that a motion to exclude evidence which does not state the grounds on which the motion is based is properly overruled.’ Ex parte Maxwell, 439 So.2d 715, 717 (Ala.1983).”

Cannon v. State, 518 So.2d 872, 873 (Ala. Cr.App.1987).

[10]*10Therefore, this matter is not preserved for our review.

II

The appellant argues that the seizure of bullets from his front pockets constituted an illegal search and seizure; however, this matter is not preserved for our review. The testimony concerning the bullets was entered without an objection on Fourth Amendment grounds. Moreover, the appellant failed to make any motion for a suppression hearing on the seized bullets. At the close of the State’s case, the appellant made a motion to exclude the State’s evidence, on the ground that the cocaine that was seized from the taxi cab, in which the appellant was apprehended, was acquired as the result of an illegal search and seizure. Thus, the appellant failed to object to the State’s introduction of the bullets, which were seized from the appellant’s pockets, on this ground. Thus, this matter is not preserved for review. Benge v. State, 551 So.2d 430, 432 (Ala.Cr.App.1989); Thomas v. State, 447 So.2d 203 (Ala.Cr. App.1984).

III

The appellant argues that the search of the taxi cab, in which he was a passenger, was unconstitutional. In the present case, two packets of cocaine were found underneath the back seat of the taxi cab. The appellant does not claim any pos-sessory interest in the vehicle nor does he assert that he had any expectation of privacy. Moreover, the appellant testified at trial that he had no knowledge of the cocaine and that the cocaine was not his.

In Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 432-33, 58 L.Ed.2d 387 (1978), the United States Supreme Court held that the petitioners did not have standing to challenge the search of a vehicle in which the petitioners were passengers and the subsequent seizure of a box of rifle shells from in the glove compartment and a sawed-off rifle from under the front passenger seat. The Court stated that the petitioners “made no showing that they had any legitimate expectation of privacy in the glove compartment or area under the seat of the car in which they were merely passengers,” and that “[l]ike the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy.” Id.

Thus, in German v. State, 492 So.2d 622, 624 (Ala.Cr.App.1985), this Court noted that “the appellant made no assertion of a property or possessory interest in the vehicle or property seized,” and stated that she “simply failed to establish her standing to challenge the search and seizure.”

The appellant in the present case does not have standing to object to the search of the taxi cab.

IV

The appellant argues that the trial court erred by allowing Investigator Sharon Howard to give hearsay testimony which was allegedly irrelevant, immaterial, and extremely prejudicial to the appellant. The appellant also argues that his rights to a fair trial were violated by her testimony.

The record indicates that during the cross-examination by defense counsel of State’s witness Investigator Sharon Howard, the following transpired:

“Q Did you have probable cause to believe that a felony had been committed at that time?
“A Yes, sir, we did.
“Q What felony?
“A Possession.
“Q Of what?
“A Cocaine.
“Q What gave you the right to believe that at that time, ma’am?
“A Because for nine months I worked—
“Q I am just asking you about this specific instance.
“[Prosecutor]: Your Honor, he asked the question. I ask that she be able to answer the question.
“THE COURT: You asked the question, [defense counsel]. I will let her answer it.
[11]*11“Go ahead.
“A For nine months I worked under cover. The majority of my cases were made in that same alley. I made 116 cases and in just about all my cases I bought little packets just like that. All those—
“[Defense counsel]: Objection, Your Honor. She’s putting into evidence that she’s talking about some packets in other cases.
“THE COURT: You asked the question, [defense counsel].
“Go ahead, ma’am.
“A All the packets that I purchased I purchased in that same alley. . That particular night there was more than usual traffic going in and out. We observed the cars going in and the people on foot going to the cars, and then the cars would leave out, more so than usual.
“Okay. One of the officers decided to get a little bit closer in the alley to see actually what was going on.
“[Defense counsel]: I will object to that portion of it, Your Honor, what one of the officers decided.
“THE COURT: Overruled.
“Go ahead, ma’am.
“A Okay. When he was in the alley that’s when he observed the white male walk in. Of course, at this time we didn’t know it was Michael.

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Related

State v. Taylor
676 So. 2d 951 (Court of Criminal Appeals of Alabama, 1995)
Baker v. State
599 So. 2d 60 (Court of Criminal Appeals of Alabama, 1991)

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Bluebook (online)
579 So. 2d 8, 1990 Ala. Crim. App. LEXIS 1689, 1990 WL 210528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanza-v-state-alacrimapp-1990.