Pope v. State

905 So. 2d 20, 2004 Ala. Crim. App. LEXIS 196, 2004 WL 2201244
CourtCourt of Criminal Appeals of Alabama
DecidedOctober 1, 2004
DocketCR-03-0693
StatusPublished

This text of 905 So. 2d 20 (Pope 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
Pope v. State, 905 So. 2d 20, 2004 Ala. Crim. App. LEXIS 196, 2004 WL 2201244 (Ala. Ct. App. 2004).

Opinion

SHAW, Judge.

The appellant, Robert Pope, was indicted for felony driving under the influence (“DUI”), a violation of § 32-5A-191(h), Ala.Code 1975; driving while his license was revoked, a violation of § 32-6-19(b), Ala.Code 1975; failing to display evidence of insurance, a violation of § 32-7A-16(2), Ala.Code 1975; and unlawful possession of prohibited beverages in a “dry county,” a violation of § 28-4-20, Ala.Code 1975. Before trial, Pope pleaded guilty to driving while his license was revoked and to failing to display proof of insurance. Following a jury trial, the jury acquitted Pope of the DUI charge; Pope was" convicted of the unlawful possession of controlled beverages. The trial court sentenced Pope to serve 180 days’ imprisonment for driving while his license was revoked and 30 days’ imprisonment for failing to display proof of insurance; those sentences were to run concurrently. The trial court sentenced Pope to serve 90 days’ imprisonment for unlawful possession of prohibited beverages; that sentence was to run consecutively to the other two sentences.

The evidence adduced at trial indicated the following. Jim Webster, an officer with the Hartselle Police Department, tes[22]*22tified that at approximately 11:15 p.m. on April 27, 2002, he stopped a vehicle on Highway 36 West; he stated that the vehicle pulled into the parking lot of the West Hartselle Baptist Church. According to Officer Webster, while he was conducting that traffic stop, he observed another vehicle parked in the church parking lot; he stated that the driver of that automobile, whom he identified as Pope, appeared to be leaning on the steering wheel. Officer Webster testified that, after he finished the traffic stop of the first vehicle, he moved his patrol car behind the other vehicle, got out of his patrol car, and began to approach the vehicle on foot; Pope began to drive away at that time. According to Officer Webster, he got back into his patrol car, turned on his police lights, and pursued Pope. He stated that Pope was driving approximately 20 miles per hour in a 45-mile-per-hour zone; Officer Webster further stated that he called in the license plate number on Pope’s vehicle and that that number came back as being registered to another vehicle. According to Officer Webster, Pope pulled over approximately 100 yards east of the church. Officer Webster stated that he got out of his patrol car and approached Pope’s automobile; he stated that he then smelled alcohol and saw a can of beer between Pope’s feet on the floorboard. Officer Webster stated that once backup arrived, he had Pope get out of his vehicle and he asked Pope to perform field-sobriety tests; according to Officer Webster, Pope agreed to attempt the tests but he was unable to successfully complete the tests. Officer Webster further stated that “I asked him if he had alcohol this evening. He said, ‘I drank a couple of beers.’ ” (R. 44.) Officer Webster testified that he placed Pope under arrest for DUI and conducted a search of Pope’s automobile; he stated that he found four 16-oz. beers in a cooler in the front floorboard on the passenger side, as well as the open beer between Pope’s feet on the driver’s side floorboard. Officer Webster stated that he transported Pope to the police station and that once at the station Pope refused to submit to a Draeger breath-alcohol test. On cross-examination, Officer Webster stated that he decided to approach Pope’s automobile that night “[bjecause [it] was a suspicious vehicle at a church late at night, and [the driver] was leaning over his steering wheel” (R. 56), and that he “had a strong suspicion that [the driver] was intoxicated or he could be possibly attempting to go break into a church.” (R. 56.)

I.

Pope first argues that the trial court erred in denying his motion for a judgment of acquittal because, he claims, “the warrantless stop in this case was illegal and unjustified as no crime had been committed in the presence of the officer.” (Pope’s brief at p. 16)(emphasis omitted).

Initially, we note that, although Pope couched this claim in terms of a challenge to the trial court’s denial of his motion for a judgment of acquittal, the thrust of Pope’s claim actually goes to the legality of his arrest, rather than the sufficiency of the State’s evidence to prove a prima facie case of the charged offenses. However, it is well-settled that “[rjeview on appeal is limited to review of questions properly and timely raised at trial.” Newsome v. State, 570 So.2d 703, 716 (Ala.Crim.App.1989). “Even constitutional claims may be waived on appeal if not specifically presented to the trial court.” Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997).

“In order for this court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific [23]*23grounds for the objection should be stated and a ruling on the objection must be made by the trial court.” Goodson v. State, 540 So.2d 789, 791 (Ala.Crim.App.1988), abrogation on other grounds recognized by Craig v. State, 719 So.2d 274 (Ala.Crim.App.1998). “When a timely objection at the time of the admission of the evidence is not made, the issue is not preserved for this Court’s review.” Ziglar v. State, 629 So.2d 43, 47 (Ala.Crim.App.1993). “ ‘An objection to a question, made after an answer is given, is not timely and will not preserve the issue for review.’” Roper v. State, 695 So.2d 244, 246 (Ala.Crim.App.1996), quoting Scott v. State, 624 So.2d 230, 234 (Ala.Crim.App.1993). See also Ex parte Crymes, 630 So.2d 125, 127 (Ala.1993) (holding that “[a] proper objection must be made after the question calling for objectionable testimony is asked and before the ivitness answers ”).

Here, Pope did not challenge the legality of the arrest until he made his motion for a judgment of acquittal at the close of the State’s case-in-chief. Officer Webster testified at length, without objection, about the events giving rise to the charged offenses. The beer cans collected from Pope’s automobile were admitted into evidence without objection, and there was no objection, at the time that he testified, to Officer Webster’s testimony about his observations at the scene and his discovery of the alcoholic beverages in Pope’s automobile. Thus, this claim was not preserved for our review.

II.

Pope next argues that the trial court erred in denying his motion for a judgment of acquittal because, he claims, the State did not prove that the substance in the containers was actually alcohol. Specifically, he claims that the State should have tested the alleged beer to determine the presence of alcohol.

Pope quotes the following excerpt from Blackwell v. State, 42 Ala.App. 246, 160 So.2d 493 (1964):

“We cannot notice or take judicial knowledge that ‘Falstaff beer cans and cartons’ express to a common intendment so as to dispense with bringing the claimed contraband before the jury or of opening at least one can so as to test its contents both as to alcohol and volume.”

42 Ala.App. at 248, 160 So.2d at 495. Pope also quotes the following excerpt from Leverette v. State, 594 So.2d 731 (Ala.Crim.App.1992):

“Furthermore, no testimony was offered to establish that any of the suspect cans actually contained beer or, in fact, whether ‘Miller’s Best’ is indeed a brand name for a line of malt or brewed beverages.”

594 So.2d at 732.

However, to distinguish the facts here from those in

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Related

Scott v. State
624 So. 2d 230 (Court of Criminal Appeals of Alabama, 1993)
Ex Parte Crymes
630 So. 2d 125 (Supreme Court of Alabama, 1993)
Roper v. State
695 So. 2d 244 (Court of Criminal Appeals of Alabama, 1996)
Blount v. State
876 So. 2d 509 (Court of Criminal Appeals of Alabama, 2003)
Ziglar v. State
629 So. 2d 43 (Court of Criminal Appeals of Alabama, 1993)
Goodson v. State
540 So. 2d 789 (Court of Criminal Appeals of Alabama, 1988)
Newsome v. State
570 So. 2d 703 (Court of Criminal Appeals of Alabama, 1990)
Craig v. State
719 So. 2d 274 (Court of Criminal Appeals of Alabama, 1998)
Cochran v. State
808 So. 2d 1226 (Court of Criminal Appeals of Alabama, 2000)
Brown v. State
705 So. 2d 871 (Court of Criminal Appeals of Alabama, 1997)
Blackwell v. State
160 So. 2d 493 (Alabama Court of Appeals, 1964)
Clark v. State
301 So. 2d 258 (Court of Criminal Appeals of Alabama, 1974)
Leverette v. State
594 So. 2d 731 (Court of Criminal Appeals of Alabama, 1992)

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Bluebook (online)
905 So. 2d 20, 2004 Ala. Crim. App. LEXIS 196, 2004 WL 2201244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pope-v-state-alacrimapp-2004.