Vaughn v. State

474 So. 2d 1158, 1985 Ala. Crim. App. LEXIS 5663
Court of Criminal Appeals of Alabama·Decided July 23, 1985·No. 1 Div. 808·Published·Cited by 1 cases

Opinion

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a jury trial on an indictment that charged that defendant did “unlawfully sell, furnish or give away Pentazocine or Diazepam, controlled substances, ... in violation of § 20-2-7 of the Code of Alabama, _” The court sentenced defendant to imprisonment for ten years.

Only two issues are presented in brief of counsel for appellant.

By the first issue presented in the brief of counsel for appellant, reversible error is sought to be shown by the refusal of the trial court to give the following charge requested in writing by defendant:

“I charge you, members of the jury, that if you are reasonably satisfied that a witness has testified willfully, falsely, and intentionally to any material fact in the ease, then the law says, as to that particular witness, you have a right to disregard entirely the testimony of that witness. If the jury is reasonably satisfied that a witness has willfully and corruptly sworn falsely as to a matter, material to the issues in the case, it may in its discretion, reject all of the testimony of that witness.”

The first sentence of said charge is not an unambiguous statement of the law, in that it is subject to the construction that the adverbs, willfully and intentionally, are [1159]*1159modifiers of the verb, testified, solely, and not as modifiers of the other adverb, falsely, also. Furthermore, we note that the correct proposition of law on the particular, point that the writer of the particular requested charge apparently intended to express was fully covered by the oral charge of the court, particularly in the sentence in the oral charge, “In the event you determine any witness under oath has intentionally testified falsely to any material fact, you may disregard that witness’ testimony in its entirety.”

In the only other ground asserted by appellant for a reversal of the judgment of the trial court, he contends that “a proper chain of custody was not established prior to the admission of the controlled substances into evidence.” The witness named in the indictment as the person to whom the defendant was charged with having sold the controlled substances testified on the trial that at the time of the particular transaction he was working with the Mobile Police Department as an undercover agent “to obtain drug buys if possible.” The following is a part of his testimony:

“A. He [defendant] went in the trunk of the automobile and had a little tote bag and come out with a little match box and that match box contained two tablets.
“Q. All right. And did you take the match box from Mr. Vaughn?
“A. I did.
“Q. And did you give him anything in return for the match box?
“A. Twenty dollars in U.S. currency.
“Q. Twenty dollars?
“A. Um-hum.
“Q. What happened next?
“A. After that, I turned and walked off.
“Q. And what did you do with the match box?
“A. Walked out about three blocks. Officer Pears, Officer Monigan came along. I got in the car, presented the drugs to them.
“Q. Do you remember which officer you gave the match box?
“A. Pears.
“Q. Officer Pears?
“A. (Witness nodding.)”

Officer Pears testified that on the particular night he also was working under cover and maintained contact with “Officer Moni-gan and Reserve Officer McKinney ... trying to make undercover buys.” He said that while doing so, he observed from a distance, some transaction between the defendant and Mr. McKinney. His testimony continued as follows:

“Q. Did you keep Mr. McKinney in your line of vision all the way back to the car?
“A. Yes.
“Q. And what if anything happened when Mr. McKinney — Did he make any stops along the way?
“A. No, he didn’t.
“Q. Did you see him throw anything down or pick anything up?
“A. No.
“Q. And what if anything happened when he got back to the car?
“A. He got back in the car. I asked him did he get anything and he handed me the match box that he had.
“Q. Did you open the match box that he had at that time?
“A. Yes, I did.
“Q. What if anything did you see in the match box?
“A. Two Talwin and three Valiums.
“Q. What had you had occasion to see those drugs before in your capacity as undercover officer?
“A. Yes, I have.
“Q. And did they have the appearance of those particular drugs?
“A. Yes, they did.
“Q. Describe the pills, if you would, please, sir.
“A. The two Talwins are orange tablets and the Valiums are blue.
“Q. Was there anything else in the match box?
“A. No, that was all.
“Q. What if anything did you do with the match box?
[1160]*1160“A. I kept it in my custody until it was turned over to the lab.
“Q. And how long would that have been, if you recall?
“A. I think it was turned over on the 4th, I believe.
“Q. Three days later?
“A. Yes.
“Q. Where did you store those drugs in that interim?
“A. They would have been kept in the trunk of the car.
“Q. Of your undercover car?
“A. Yes.
“Q. Were there any other drugs in the trunk of that car?
“A. No, there wasn’t.
“Q. Who else had access to these drugs during that period of time?
“A. I was the only one that had keys to the car.

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Vaughn v. State, 474 So. 2d 1158, 1985 Ala. Crim. App. LEXIS 5663 (Ala. Ct. App. 1985).

474 So. 2d 1158 (Vaughn v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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