Appendix — Moore v. Alabama

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1984

JAYNE KING MOORE, Petitioner

V.

STATE OF ALABAMA, Respondent

APPENDIX

TO

Petition for a Writ of Certiorari

To The Alabama Court of Criminal Appeals

A:TRIAL COURT ORDER

B:APPEALS COURT OPINION

C:APPEALS COURT REHEARING DENIAL

D:ALABAMA SUPREME COURT DENIAL OF WRIT

JAYNE KING MOORE, pro se

Attorney for herself

P.O. BOX 5071

Montgomery, Alabama 36103

205 / 262-7381 (days)

APPENDIX A

HANDWRITTEN BY THE COURT: At the

conclusion of the State's case, the

Defendant moved for a judgment of

acquittal; and for a directed verdict,

and to exclude the State's evidence,

separately and severally, and as grounds

therefor, the defendant states separately

and severally that the State has failed

to prove a prima facie case; that the

State has failed to prove that the

defendant ever had any contact with the

drugs set forth in the indictment; the

State failed to prove the defendant had

any contact whatsoever with the trailer

Or with the other buildings wherein the

drugs set forth in the indictment were

found.

ORDER

There is an abundance of evidence

that drugs, drug paraphenal:a and

literature were found in a house trailer

and an outbuilding at a trailer in

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ee

Sellers Station, Montgmery County,

Alabama. The evidence showed that the

defendant acknowledged to the arresting

officer or some of them that this was, in

fact, her residence; the evidence shows

that the defendant's husband lived in the

trailer also; the defendant brought out

that the defendant's husbanco had been

convicted of possession of the drugs in

question. In the opinion of the Court,

the question of possession, a

constructive possession, is one for the

Jury.

Motions are therefore overruled.

Signed: Joseph Phelps, Judge.

(Record, 153-54)

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APPENDIX B

STATE OF ALABAMA-JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1983-84

3 Div. 914

Jayne King Moore, alias

Vv.

State

Appeal from Montgomery Circuit Court

TYSON, JUDGE

Jayne King Moore was indicted for

violation of the Alabama Un:.form

Controlled Substances Act, { 20-2-1, et.

seq., Code of Alabama 1975. In the first

count of the three-count indictment,

appellant was charged with she unlawful

possession of cocaine. The second count

of the indictment charged the appellant

with the unlawful possession Diazepam,

and the third count charged her with the

unlawful possession of marijuana. the

jury found the appellant "guilty as

on Fine

charged in the indictment" and after a

sentencing hearing she was sentenced to

ten years' imprisonment.

On the afternoon July 21, 1982,

members of the Montgomery City Police

Department, the Montgomery Country

Sheriff's Department, the District

Attorney's office, and the Alabama Bureau

of Investigation executed a search

warrant for a mobile home and

out-buildings in Lapine, Alabama. The

search warrant was the result of an

undercover operation which was being

carried on in Montgomery County. The

mobile home and out-buildings were

allegedly owned by Tim and Jayne Moore.

Officer Dennis Bodine ot the

Montgomery Police Department testified

that, upon arrival at the residence of

Tim and Jayne Moore, he observed the

appellant and her husband working on a

fence near their mobile home. He stated

that a flatbed truck was parked near the

ansr

a

fence, where the appellant and her

husband were standing. He stated that,

as the officers entered the property of

the appellant, she jumped on a ten speed

bicycle and began heading tcwards the

mobile home. He also statec that the

appellant's husband started running

towards the residence. He stated that

the appellant and her husband were

stopped before they reached the residence

and placed in custody.

Officer Bodine testifiec: that police

officers and other law enforcement

officials then executed the search

warrant. He stated that entry was made

into the residence and a large amount of

illegal drugs and paraphena.ia were found

in the mobile home. He stated that

several bags of marijuana were found in a

brown box on the kitchen counter and he

identified such items. He further

identified a large number o£ other items

found in the home and outbuildings. Such

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items were (1) a plastic bag containing

white tablets, found in the front bedroom

of the home; (2) two plastic bags of

white powder, found in the front bedroom

of the home; (3) two more plastic bags

containing white tablets, found in the

front bedroom on a counter top; (4) a

plastic bag containing a brown substance,

found in the front bedroom counter top;

(5) a small green box containing

marijuana and a white powder, found in

the bedroom; (6) a small piece of tin

foil with a brown substance wrapped

inside, found in closet of bedroom; (7) a

bottle of Lactose, found on the counter

top in the front bedroom; (8) a small

blue dispenser with a white powder

inside, found on the front seat of the

flatbed truck; and (9) a plastic bag with

marijuana in it, found in an outbuilding.

He stated that he kept each of these

items in his control until he turned them

over to Allen Adair at the State

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Department of Forensic Sciences. He

stated that these items were tested and

returned to him, where they were placed

in the drug evidence room of the

Montgomery Police Department.

Officer Bodine further testified that

a number of other items were found during

the search. Such items were (1) a set of

counter weights for a scale, found in

front bedroom; (2) a brown vinyl carrying

case with a set of scales, ftound on

bathroom counter; (3) a blue porcelain

water pipe, with a residue in it, found

in the closet of front bedroom; (4) a

magazine with an article on growing

marijuana in it, a Xerox copy of a book

entitled “Drug Manufacturing for Fun and

Profit," a pamphlet entitled "The

Marijuana Consumers and Dealers Guide", a

book entitled the "Cocaine Handbook," and

a "Fall Harvest Guide," all found in a

Gesk in the living room of the home; (5)

a field testing kit; (6) a locker

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containing laboratory glassware which had

residue in it, found in an outbuilding;

and (7) a box containing a kook entitled

"Marijuana Grower's Guide," a glass jar

with residue inside, a "Deering" sifter

used for mixing cocaine, found in the

front bedroom.

He stated on cross-examination, when

questioned as to why he believed the

mobile home to be a residence, that there

were clothes in the closets, there were

food items in the cabinets énd deep

freeze.

Allen Adair testified that he was

employed as a toxicologist with the STate

Department of Forensic Science. He

stated that he did an analysis on a

number of items turned over to him by

Officer Dennis Bodine. He stated that he

tested six plastic bags containing plant

material, which were located in a brown

box. He stated that these contained

marijuana. He stated that he tested

five

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white powder found in a plastic bag and

that such powder was Dextrose - a cutting

agent for various drugs. He stated that

he tested a plant material ina bic glass

jar and it was marijuana. He stated that

he tested 508 white tablets and these

tablets were identified as Diazepam - a

tranquilizer drug. He stated that he

tested two plastic bags containing a

white powder and this powder was cocaine.

He stated that he tested several more

clear plastic bags containing white

tablets and these tablets were Diazepam.

Mr. Adair further testified that he

tested a brown jar containing a white

powder and this powder was Lactose - a

growth sugar. He tested a plastic bag

containing a brown substance and this

substance was identified as hashish. He

stated that he tested a plant material

and a white powder located in a green box

and these substances were identitied as

marijuana and cocaine. He stated that he

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tested a brown substance found wrapped in

a small piece of tin foil and this

substance was hashish. He tested a blue

container which had a white powder in it

and this powder was cocaine. He tested a

green plant material found in a clear

plastic bag and this material was

marijuana. He also tested two more bags

which contained plant material and this

was identified as marijuana.

W. J. Walker testified that he was

employed by the Montgomery County

Sheriff's Department and thet he was

present when the search was conducted on

July 21, 1982. He stated that he found a

brown box on the kitchen counter which

contained a number of bags with a plant

material in them. He statec) that he

turned this evidence over to Officer

Bodine. He further stated that he had

been informed that the mobile home was

the residence of Tim and Jayne Moore.

On cross-exanmination, he stated that

ntl Geo

he observed women's clothinc in the

closet of a bedroom in the nobile home.

William Rhegness testified that he

was a narcotics agent employed by the

Alabama Bureau of Investigation. He

stated that he was involved in the search

of the appellant's residence on July 21,

1982. He stated that he recovered a

small piece of tin foil, which had a

brown substance inside it, from a shelf

in a closet in the front bedroom. He

stated that he found a water pipe,

designed for smoking marijuana or

hashish, in the same place he discovered

the tin foil. He stated that he turned

| both of these items over to Officer

Bodine.

On cross-examnation, he stated that

the appellant admitted to him that she

lived in the mobile home. He

specifically stated that he "recallled]

asking her name and if she lived there

and she told me and affirmed yes she

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i

lived there."

B.G. Bryant testified that he was

employed by the District Attorney's

office. He stated that he was present

during the search of the appellant's

residence. He stated that previous to

this search, during the course of his

investigation, he looked in the

Montgomery County phone book and observed

that the Moore residence was listed at

the address they ended up searching. He

further stated that he participated in

the search and recovered a blue

container, which had a white powder in

it, from the seat of the flatbed truck.

He stated that he turned this over to

Officer Bodine.

N.W. Ward testified that he was

employed by the Montgomery County

Sheriff's Deprtment. He stated that he

participated in the search of the

appellant's residence and found a number

of items which he turned over to Officer

o} 2~

Bodine. Among the items he recovered

from the front bedroom of the mobile home

were (1) a book entitled "Marijuana

Grower's Guide;" (2) a big glass jar

which had marijuana in it; (3) a bag of

pills; (4) a set of weights for a triple

beam scale; (5) a plastic bag containing

a white powder; (6) a bag of 452 pills

which was in plain view on the counter

top; (7) a bottle of Lactose on top of a

counter; (8) a container with white

powder in it. He also founc a set of

scales in the bathroom on the counter

top. He also searched a desk in the

living room of the mobile home and found

a number of drug related books.

Officer Ward testified that he

noticed a mailbox across the road from

the driveway and this mailbox had "Moore"

on it.

Ken Halford testified that he was

employed by the Alabama Bureau of

Investigation and that he participated in

ai3e

the search of appellant's residence on

July 21, 1982. He testified that he

found women's lingerie in the mobile

home. He also testified that he found a

greenhouse setup in an eighteen wheel-

trailer, which was located beside the

mobile home. He further stated that one

Bob Robertson - a suspect in the drug

investigation - told him that Tim and

Jayne Moore lived in the mokile home.

The State rested its case at this

point and the appellant moved for a

judgment of acquittal and tc exclude the

State's evidence.

I

The appellant contends that the trial

court erred in overruling his [sic]

motion to exclude because the State

failed to prove a prima facie case.

In considering the question of

whether the trial judge properly

overruled that motion, we can only

consider that evidence which was before

«igo

7 as

etree

the trial judge at the time the motion to

exclude was made. Williams v. State, 340

So.2d 1144 (Ala. Crim. App.), cert

denied, 340 So.2d 1149 (Ala. 1976).

For unlawful possession of a

controlled substance, it is not necessary

to prove manucaption, but constructive

possession may be shown, anc where such

possession is relied upon, the State must

also prove beyond a reasonable doubt that

the accused knew of the presence of a

prohibited substance. Riggirs v, State,

, 437 So.2d 631 (Ala. Crim. App. 1983);

) Jones v. State, 432 So.2d 5 (Ala. Crim.

App. 1983); Yarbrough v. State, 405 So.2d

721 (Ala. Crim. App.), cert. denied, 405

So.2d 725 (Ala. 1981); _Green yv, State,

384 So.2d 1215 (Ala. Crim. App. 1980);

_McHellen v. State, 351 So.2d 689 (Ala.

Crim. App. 1977); Daniels v. State, 49

Ala. App. 654, 275 So.2d 169 (1973).

: Guilty knowledge of the presence of the

illegal substance may be established by

ak Ge

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circumstantial evidence. Jones v. State,

Supra; Yarbrough v. State supra; Mitchel).

vy. State, 395 So.2d 124 (Ala. Crim. App.

1980), cert denied, 395 So.2d 127 (Ala.

1981); Green v. State, supra; McHellen v.

State, supra; Henderson v. State, 347

So.2d 540 (Ala. Crim. App.), writ

quashed, 347 So.2d 547 (Ala. 1977); Parks

vy. State, 46 Ala. App. 722, 248 So.2d 761

(1971). Since the possessicn of illegal

drugs is susceptible of joirt commission,

the guilt of the accused does not

necessariliy depend upon proof of her

ownership of the drugs. Mitchell v.

State, supra; McCord vy. State, 373 So.2d

1242 (Ala. Crim. App. 1979); Henderson v.

State, supra; Holley v. State 447 So.2d

829 (Ala. Crim. App. 1983).

"While mere proximity to contraband

is not enough to establish constructive

possession, where other circumstantial

evidence ... is sufficiently

probative,proximity to contraband with

as

~16-

inferred knowledge of its presence will

nana RR

Support a finding of guilt on such

charges" German v. State, 429 So.2d 1138

(Ala. Crim. App. 1982); United States v.

Whitmire, 595 F.2d 1303 (5th Cir. 1979).

When the presence of the accused at the

scene is established and evidence of his

knowledge of the presence of the illegal

substance is shown - even by

circumstantial evidence- along with any

other incriminating evidence, the issue

of the appellant's guilt should be

| submitted to the jury. Riggins v. State,

| 437 So.2d 631 (Ala. Crim. App. 1983),

: German v. State, supra; Coilier v.

State, 413 So.2d 396 (Ala. Crim. App.

1981), affirmed, 413 So.2d 403 (Ala.

1982); _Radke v State, 292 Ala. 290, 293

So.2d 314 (1974). "If presence at the

time and place a crime is committed, in

conjunction with other facts and

circumstances tend to connect the accused

with the commission of the crime, then

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the jury may find the accused guilty”

German v. State, supra;

Dolvin v. State 319 So.2d 133 (Ala.

1980).

In this case there is no argument

with the proposition that where drugs

were found on the premises under control

of the appellant an inference may arise

that the appellant had knowledge and

possession of them. The particular

difficulty in this case is whether there

was sufficient evidence of the

appellant's control of the premises to

authorize an inference of her knowledge

and constructive possession of the drugs

found on those premises. The appellant

argues that evidence of control was

insufficient because there was no

evidence that she was ever physically

present in the mobile home. A thorough

review of the evidence in this case, and

the authorities on this point, danitiaiiiid

us that this was a question for the jury

«2 Ba

CIERRA TRE RO

in this case. "Where, as here, the

presence of the accused at the scene is

established by both direct and

circumstantial evidence, and the evidence

of the accused's knowledge of the

presence of the prohibited substance is

shown together with other incriminating

iS PRS CA ALO gs

evidence, the issue of the defendant's

guilt should be submitted to the jury."

Henderson v. State, 347 So.2d 540 (Ala.

Crim. App.), writ quashed, 347 So.2d 547

(Ala. 1977); Fields v. State, 333 So.2d

861 (Ala. Crim. App. 1976). Moreover, a

wan Reel BO ae eta ii! Mile ak Silihe sec

showing that there is a reasonable

probability of unlawful possession of

narcotics by someone is sufficient to

establish the corpus delect: of the crime

of possession. It is not necessary to

prove the accused's connect:on with the

drugs to prove the corpus delecti.

Lafitte v. State, 370 So.2d 1108 (Ala.

Crim. App.), cert. denied, 370 So.2d 1111

(Ala. 1979); Reynolds v. State, 346

aD.

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So.2d979 (Ala. Crim. App.), cert. denied,

346 So.2d 986 (Ala. 1977).

The appellant further argues that her

admission of living at the trailer was in

violation of her Miranda richts. This

testimony was elicited by appellant's own

counsel during cross-examination of

Officer Rhegness and was not objected to

Guring trial. As a result, such argument

has not been preserved for our review.

This court may only review rulings of the

trial court that are adverse to the

appellant. Moreover, error cannot be

predicated upon admission of testimony

which is elicited by defense counsel and

is responsive to defense questions.

Williams v. State, 383 So.2d 547 (Ala.

Crim. App. 1979), affirmed, 383 So.2d 564

(Ala. 1980), cert. denied 449 U.S. 995,

101 S.Ct. 534, 66 L.Ed.2d 293 (1980).

A review of the evidence in this case

reveals that the trial judge did not err

in overruling the appellant's motion to

~~)

Een: pisblisawatirec ovina

exclude the State's evidence.

II

The appellant contencs that the trial

court erred in allowing the prosecutor to

proceed in a manner that was prejudicial

to her.

In her brief the appellant notes a

large number of instances wrere the

prosecutor made comments or asked

questions and she contends ¢uch questions

and comments were prejudiciél to her.

She also argues that several] comments

made by the prosecutor durirg opening and

closing statements were improper and

prejudicial. It should be noted that the

appellant's trial counsel did not object

to a number of the questions she claims

were prejudicial and, while he did object

to several other questions and comments,

he did not invoke a ruling by the trial

court. As regards appellant's complaint

about improper closing argument, we have

carefully examined such argument and find

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the appellant's contention to be without

merit. While in argument to ie Sum,

counsel may not argue as a fact that

which is not in evidence, nevertheless he

may state or comment on proper inferences

from the evidence and may draw

conclusions from the evidence based upon

his own reasoning. Sanders v State, 433

So.2d 348 (Ala. Crim. App. 1982);

Speigner v State, 369 So.2d 39 (Ala.

Crim. App.), cert. denied, 369 So.2d 46

(Ala. 1979); Liner v State 350 So.2d 760

(Ala. Crin. App. 1977). The prosecutor,

as does defense counsel, has a right to

present his impressions from the

evidence. Sanders v State, supra; Hayes v

State, 395 So.2d 127 (Ala. Crim. App.

1980), cert. denied, 395 So.2d 150 (Ala.

1981); McQueen vy State, 355 So.2d 407

(Ala. Crim. App. 1978). He may argue

every legitimate inference and may

examine, collate, shift and treat the

evidence in his own way. Sanders y State,

~2%«

Supra; Hayes vy State, supra; _McQueen v

State, supra.

Furthermore, in this case appellant's

counsel did not object to any of the

statements relied upon by appellant.

"Generally, improper argument is not a

valid ground for motion for a new trial

or subject to review on appeal, unless

there is timely and specific objection by

counsel or motion to exclude, an adverse

ruling thereon by the trial court, or

refusal of the trial court to make a

ruling, and an objection thereto." Thomas

y State, 440 So.2d 1216 (Alz. Crim. App.

1983); Trawick v State, 431 So.2d 574

(Ala. Crim. App. 1983); Lawson vy State,

377 So.2d 1115 (Ala. Crim. App.), cert.

denied, 377 So.2d 1121 (Ala. 1979).

We have carefully reviewed the

questions and comments of the prosecutor

during the trial of the case. As stated

above, the complained of questions were

not objected to at the trial level, or

o23~

SO

there was no ruling invoked by the

appellant's counsel. Our review on

appeal is limited to maters on which

rulings have been invoked at trial court.

Robinson v State, 441 So.2d 1045 (Ala.

Crim. App. 1983); Cowgill v State, 426

So.2d 517 (Ala. Crim. App. 1982); Whorton

y State, 422 So.2d 812 (Ala. Crim. App.

1982); Wood v State, 416 So.2d 794 (Ala. |

Crim. App. 1982); Parker v State, 406 |

So.2d 1036 (Ala. Crim. App.’), cert. :

denied, 406 So.2d 1041 (Ala. 1961).

Moreover, in the absence of a ruling, a

request for a ruling, or an objection to

the court's failure to rule , there is

nothing preserved for appellate review.

Stewart v State, 398 So.2d 369 (Ala.

Crim. App.), cert. denied, 398 So.2d 376

ay ere

(Ala. 1981); Magro vy State, 384 So.2d 871

(Ala. Crim. App.), cert. denied 384 So.2d

875 (Ala. 1979); Cook vy State, 369 So.2d

1251 (Ala. 1979). The trial court did

not err on this point.

«Div

IIl

The appellant argues that the trial

court erred in overruling her motion for

a new trial and assigns several reasons

therefor.

A

She argues that the trial court erred

in failing to exclude the items which

were seized from the residerce.

The Alabama Supreme Court has held

that the admission of various items of

drug “paraphenalia" is permissible in

order for the State to show the complete

story. Furthermore, evidence of other

drugs and paraphenalia seized in the

search of defendant's home, but not

encompassed in the charge ayainst the

defendant, is admissible to show the

whole story. Beasley v State, 408 So.2d

173 (Ala. Crim. App. 1981), cert. denied,

408 So.2d 180 (Ala. 1982); Casey v State,

406 So.2d 1029 (Ala. Crim. App.), cert

denied, 406 So.2d 1036 (Ala. 1981); Reed

|

vy State, 401 So.2d 131 (Ala. Crim. App.),

cert denied, 401 So.2d 139 (Ala. 1981);

Green y State, supra; McHellen vy State,

Supra; Brantley vy State, 55 Ala. App.

493, 317 So.2d 337 (1974), reversed, 294

Ala. 344, 317 So.2d 345 (1975), on

~ remand, 55 Ala. App. 717, 317 So2d 347,

cert. denied, 294 Ala. 346, 317 So.2d 348

(1975).

In this case the officers were

searching under a valid search warrant

and the execution of such wérrarnt was

proper. Under these circumstances the

evidence seized was admissible as

evidence of the crime for which the

appellant was convicted. See Baty yv

State, supra. Moreover, the State

properly showed a complete chain of

custody for each item seized and entered

into evidence. See Sturdivant v State,

439 So.2d 184 (Ala. Crim. App. 1983);

Riggins v State, 437 So.2d 631 (Ala.

Crim. App. 1983); Luster v State, 433

f -26-

So.2d 481 (Ala. Crim. App. 1983); Congo v

State, 409 So.2d 475 (Ala. Crim. App.

1981), cert. denied, 412 So.2d 276 (Ala.

1982); Holley v State 447 So.2d 829 (Ala.

Crim. App. 1983).

B

The appellant further argues that the

trial court should have grarted her a new

trial because the jury returned a general

verdict which did not refer to any

specific controlled substance for which

she was charged with possessing. She was

charged in a three count indictment with

the possession of three separate drugs.

It is the rule in Alabama that a general

verdict of guilty on a multiple count

indictment is valid where the evidence

would sustain the verdict of guilty under

one or more counts and the sentence

imposed is no greater than could have

been imposed on any one of the counts.

In this case the evidence was sufficient

to find a verdict of guilty on each count

-

in the indictment. Furthermore, the

appellant was sentenced well within the

limits for the offense.

Cc

The appellant also contends that the

trial court should have concucted a

perjury hearing as to a particular

State's witness and failure to do so was

error. She contends that ske never made

a statement to Officer Rhegress, or to

anyone, about living in the mobile home.

In order to obtain a new trial on the

basis of the use of perjurec testimony by

the State, a defendant must allege and

prove (1) that the testimony was

perjured; (2) that it was on a matter of

such importance that the truth would have

prevented a conviction; (3) that the

State had knowledge that the testimony

was perjured; and (4) that the defendant

was not negligent in discovering the

falsehood and in raising the issue.

Waldrop v State, 448 So.2d 490 (Ala.

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Crim. app. 1984); Phelps v State, 439

So.2d 727 (Ala. Crim. App. 1983);

Pennington v State, 420 So.2d 845 (Ala.

Crim. App. 1982); Barnes vy State, 415

So.2d 1217 (Ala. Crim. App. 1982);

Summers vy State, 366 So.2d 336 (Ala.

Crim. App. 1978), cert. denied , 366

So.2d 346 (Ala. 1979). In the present

case the appellant failed to satisfy this

burden of proof. The trial court did not

err in denying the motion for new trial

on this point.

Moreover, a decision on a motion for

a new trial rests largely within the

discretion of the trial court, and, in

reviewing such a decision, the appellate

court will indulge every presumption in

favor of the correctness thereof. Ward v

State, 440 So.2d 1227 (Ala. Crim.App.

1983).

IV

The appellant contends that the trial

court erred in refusing several of her

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requested written requested charges.

However, only one of these refused

charges has been preserved for our review

pursuant to Allen vy State, 414 So.2d 989

(Ala. Crim. App. 1981), affirmed, 414

So.2d 993 (Ala. 1982). The appellant's

contention that the trial court

improperly refused the preserved written

requested charge is without merit.

"The refusal of a charge, though a

correct statement of law, shall not

be cause for a reversal if it appears

that the same rule of law was

substantially and fairly given to the

jury in the court's general charge or

in charges given at the request of

the parties.”

Ala. Code 12-16-13 (1975). See Campbell

y State, 423 So.2d 284 (Ala. Crim. App.

1982); Lambeth v State, 380 So.2d 923

(Ala. 1979); Williams v State, [Ms. 8

Div. 940, January 31, 1984], So.2d

_.. (Ala. Crim. App. 1984).

We have reviewed the refused charge

and find that it was fully covered in the

trial court's oral charge to the jury.

~$@—

Therefore, there is no basis of error to

reversal on this issue.

V

The appellant contends that the trial

court's consideration of a pre-sentence

report on her constituted a denial of due

process because it consisted of "a pack

of lies". She contends that the report

contained false accusations and that her

attorney challenged such report at the

sentencing hearing. This court is bound

by the record and not by allegations or

arguments in brief reciting matters not

disclosed by the record. Eaton v State,

423 So.2d 352 (Ala. Crim. App. 1982);

Harris v State, 420 So.2d 812 ((Ala.

Crim. App. 1982); Hollins v State, 415

So.2d 1249 (Ala. Crim.App 1982). There

is nothing in the record before us which

Supports the claim of the appellant.

The judgment of the trial court is

due to be and is hereby affirmed.

AFFIRMED. All the judges concur.

aSi<

APPENDIX C

THE STATE OF ALABAMA-JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1983-84

3 Div. 914

Jayne King Moore, alias

Vv.

State

Appeal from Montgomery Circuit Court

REHEARING DENIED

August 14, 1984

o~%2e

APPENDIX D

THE STATE OF ALABAMA-JUDICIAL DEPARTMENT

—— ame ee we ew ee ee ee ee ie we ee ee we ee ee i i ie

October 19, 1984

83-1333

EX PARTE: JAYNE KING MOORE

PETITION FOR WRIT OF CERTIORARI

(Re: Jayne King Moore, alias v State)

CRIMINAL APPEALS 3/914

CERTIFICATE OF JUDGMENT

WRIT DENIED

The above cause having been duly

submitted, IT IS CONSIDERED AND ORDERED

that the petition for writ of certiorari

be denied.

Costs taxed to petitioner.

JONES, J. - TORBERT, C.J., SHORES,

EMBRY AND BEATTY, JJ., CONCUR.

«33—

AFFIDAVIT OF SERVICE

J, Jayne Moore, first being duly

ei ete a

sworn, hereby certify that on this the

day of January, 1985, I served a copy

of the foregoing APPENDIX TO

PETITION FOR WRIT OF CERTIORARI on the

State of Alabama, Respondent herein, by

mailing a copy in a duly addressed

envelope, First Class Postage paid,

addressed to:

Charles Graddick, Attorney General

250 Administrative Building

64 North Union Street

Montgomery, Alabama

JAYNE MOORE

Subscribed and affirmed before me

this _. day of January, 1985

NOTARY PUBLIC

My commission expires

ee ee ee -

atin