Petition for Writ of Certiorari — Lander v. Alabama
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—— eee
JOSEPH F. SPANIOL, IR
aa 55 , ‘ CLERK
11 —
IN THE —
Supreme Court Of The United States
October lerm, 1989
DONALD B. AND CAMILIA S. LANDER.
Petitioners
IHE STATE OF ALABAMA,
Responds nf
PETITION FOR WRIT OF CERTIORARI TO THE
ALABAMA SUPREME COURT
Davip S. LUKER
Luker and Brewe1
Barrister Hall
2205 Morns Avenue
Birmingham, AL 35203
(205) 251-6666
Attorney for Petitioners Lander
OF COUNSEI
lamera K. Erskine
Luker & Breuer
Barrister Hall
2205 Morris Avenue
Birmingham, Alabama 35203
(205) 251-6666
—̃ LF7—— —
QUESTIONS FOR REVIEW
WHETHER THE PETITIONERS WERE DENIED
EQUAL PROTECTION OF THE LAW DUE TO THE
STATE OF ALABAMA’S FAILURE TO FOLLOW
THEIR OWN STATE LAWS ON CONSTRUCTIVE
POSSESSION OF CONTROLLED SUBSTANCES.
TABLE OF CONTENIS
page
QUESTIONS PRESET Gee svc ccticya ca Peter dieiegen i
‘TABLE OF Ce Pee . il
TABLE OF AU Tee d ee 10
ON... eee 2
STATEMENT OF uh hen ince vccwesss 2
CONSTITUTIONAL PROVISIONS .........-cccces> 2
STATEMENT O : ̃ 2
REASONS FOR GRANTING THE WRIT ............ 5
I. Whether The Petitioners Were Denied Equal
Protection Of The Law Due To The State Of
Alabama's Failure To Follow Their Own
LI ae ee 5
*. Petitioners Were Denied Equal Protection
Ot The Law Due To The State Ot
Alabama’s Failure To Follow Their Own
Laws On Constructive Possession Of
Controtiedd r cc cect ccecccs 7
J. N l dd ee eee ee 7
2. Deprivation Of Equal Protection Of
The Law By The Trial Court's
Denying The Defendants’ Motion
For A Judgment Of Acquittal And
The Appellate Courts’ Affirmance Of
Ther Cae. os eee ee eee 5
CONCLUSION 2. 2 oc .ĩĩr «r eee as 17
111
TABLE OF AUTHORLITES
Cases: Pages
Campbell v. State,
439 So.2d 718 (Ala.Cr.App.), rev'd on
other grounds, 439 So.2d 723 (Ala. 1983) ........ 6, 8. 10
Coker v. State, 2
osu. Ben, 149 So. SUG (1952) ...............: 10
Cook v. State,
oe) go.20 165 (Ala.Cr.App. 17% 6, 10
Collins v. State, -
pee aoe ture (Ala.Cr.App. 1979) ................. 10
Crafts v. State,
459 So.20 1323 (Ala.Cr.App. 1985) .............. 12-16
DeGruy v. State,
56 Ala.App. 521, 323 So.2d 406. cert.
denied, 295 Ala. 399, 323 So.2d 411 (1975) ........ 6, 10
Donahoo v. State,
505 So.2d 1067 (Ala.Cr.App. 1986) .............. ey |
German v. State, >
429 So.2d 1138 (Ala.Cr.App. 1983) ........... 6, 10, 14
Grubbs v. State,
eee eee 10
Hill v. State,
394 So.20 106 (Ala Cr. App. 1981) ................... 8
Korreckt v. State,
507 So.2d 558 (Ala.Cr.App. 1986) .................. il
Lee v. State,
oo oe ¢a0 (Ale.Cr.App. 1977) .................. 10
Lukes v. Alabama Power Company,
57 Ala. 590, 593, 60 So.2d 349 (1952) ................ 9
McCord v. State,
379 so.20 1241 (Ala.Cr.App. 1979) ................. 10
1
TABLE OF AUTHORITIES — (Continued)
Cases: P ages
Puckett v. State,
13 Md. App. 584, 284 A.2d 252 (1971) .............. 15
Roberts v. State,
349 So.2d at 91 (Ala.Cr.App.). cert. denied,
Ex parte Roberts, 349 So.2d (Ala. 1977) ............... 15
Scrafford v. State,
414 So2a 179 (Aila.Cr.Agpp. 1962) ..... 50... 6660085. 10
State of Louisiana v. Resweber,
, ͥͥ·¹¹¹ §²wuwꝛww-- 3 16
Temple vu. State,
366 So.2d 740 (Ala.Cr.App. 1978) ............... 10. !!
Thomas v. State,
363 So.2d 1020 — 0 Q 16
White v. State,
479 So.2d 1368 — —— ee 10
Withers v. State,
120 Ala. 394, 25 So. 568 (1898) .............
Woolridge v. State,
489 So.2d 703 (Ala.Cr.App. 1986) ....... eae at Arte 12
Yarbrough v. State,
405 So.2d 721 (Ala.Cr.App.), cert. denied,
— 0 —·¹ ]˙—· w ĩ1%ÄA.fç 6. 10
Constitutional Provisions:
The United States Constitution, —
Fourteenth Amendmenin 2. 6
Statutes:
Code of Alabama, (1975) Section 354 f. 9
IN THE
Supreme Court Of The United States
October Term, 1989
DONALD B. AND CAMILIA S. LANDER,
Petitioners
.
THE STATE OF ALABAMA,
Respondent
PETITION FOR WRIT OF CERTIORARI TO THE
ALABAMA SUPREME COURT
Petitioners! respectfully pray that a Writ of Certiorari issue
to review the Judgment of the Alabama Supreme Court on
December 1, 1989, denying review of the issues raised
concerning their convictions in this case, previously affirmed
with opinion by the Alabama Court of Criminal Appeals by
Judgment of May 26, 1989.
‘Petitioners’ undersigned counsel respectfully submits that to the best of his
knowledge the style of this case accurately reflects all parties having an interest in its
outcome.
OPINIONS BELOW
Petitoners timely appealed their judgments of convictions
and sentences to the Alabama Court of Criminal Appeals. By
Judgment of May 26, 1989, the Alabama Court of Criminal
Appeals affirmed their convictions and sentences with an
opinion, Peutioners umely filed an Application for Rehear-
ing in the Alabama Court of Criminal Appeals. This Appli-
cauon tor Rehearing was denied without opinion by the
Alabama Court of Criminal Appeals on June 30, 1989.
Petiuoners timely filed a Petition for Writ of Certiorari to
review the Judgment of the Alabama Court of Criminal
Appeals in the Alabama Supreme Court. The Alabama
Supreme Court by order of December 1, 1989, denied the
Writ.
These orders appear in full in the Appendix hereto.
JURISDICTION
This Court's jurisdiction is invoked pursuant to 28 U.S.C.
Section 1257(3). This Petition was timely tiled within sixty
days of the date of the Alabama Supreme Court’s Judgment
and Order of December 1, 1989.
CONSTITUTIONAL PROVISIONS
The Fourteenth Amendment to the United States Con-
stitution provides in pertinent part:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of its laws.
STATEMENT OF THE CASE
On August 24, 1987 at approximately 2:00 p.m. agents
with the Alabama Bureau of Investigation were involved in a
routine flight from Montgomery to Perry County. While
passing over land in Autauga County, they observed what to
3
them appeared to be marijuana plants. (Vol. I. RT-11).% Asa
result of their observation, marijuana was seized on August
24. 1987, and a search was executed on August 25 on the
residence of Donald B. and Camilia S. Lander, the Petition—
ers herein. (Vol. I. CR-11 through CR-13). The fruits of this
search were later suppressed by the trial court. (Vol. I. CR-86
through CR-87). As a result of the observation and seizure
from the field, Donald B. Lander and Camilia S. Lander
were arrested on October 20, 1987, and indicted by the
Autauga County Grand Jury on February 12, 1988, and
charged with trafficking in marijuana. (Vol. I. CR-33 to
CR-36). The Petitioners were arraigned on March 8. 1988.
and the case was set for trialon May 10, 1988. The cases were
consolidated for purposes of trial, and the case was tried on
May 10, 11, and 12. On May 12, 1988, the jury returned a
vuilty verdict against both defendants. (Vol. I. CR-190 to
CR-191). During the trial of this case, testimony was elicited
from ABI pilot Roy Sumja, who said that he observed
marijuana on the ground from his position in the helicopter.
(Vol. I. KI- Ih). Agent Sumja stated that he did not ap-
prehend or see anyone in the field. (Vol. I. RT-18 through
R1-19). Alabama Bureau of Investigation Agent Charles
West testified, and during his testimony, he stated that he did
not see either defendant during his investigation of the field
of marijuana, either at home or in the woods. (Vol. I. RT-64,
Vol. II. RT-162). However, he did testify that he had found a
paper bag inside a drying shed in the woods. The bag had
the letters “CAM” written on it. (Vol. II. RT-86). He also
testified that while he was gathering the marijuana plants, he
found a vellow jacket with the name “Don L.” on the back in
the woods that was dirty and on the ground in a wet
condition. (Vol. II. RT-79). He testified that there were trails
between the different plots of marijuana, and what appeared
to be a trail in the direction of the house. (Vol. I. RT-68).
Agent West testified that he had no photographs, statements,
he record in this case consists of a two volume tnal transcript, exhibits and
pleadings numbered sequentially. 1 he Petitioners refer to the tnal record as R=
and to the clerk's record as “CR-". Where materials referenced also appear in the
Appendix to this Petition, that fact is noted
z—
fingerprints, or other evidence that would link the defen—
dants to the marijuana. (Vol. II. RT-83 through RT-84,
RI-123 through RT-124, RT-228, RT-137 through RT-
234). The Defendant Donald B. Lander took the stand and
testified that he had no knowledge of the marijuana, and that
it did not belong to him. (Vol. II. RT-272). Mr. Lander also
testified that he had in the past been given yellow rain
slickers in his job as a construction worker, similar to the one
that Agent West found, and that he kept them in his yard
and in his storage shed, and that the one found in the field
could have possibly been his. (Vol. II. RT-274).
Detendant Camitia S. Lander took the stand and testified
that she had no knowledge of the manjuana, and that it did
not belong to her. (Vol. II. RT-298). Mrs. Lander stated that
she stored bags from WalMart and other such paper bags in
her house and in her shed, and that the bag found in the
drying shed could possibly have been hers. (Vol. II. R1-295
to RI-297). Both defendants denied knowledge of the
marijuana or any involvement with it. (Vol. II. K1-272
through RI-298). At the close of the State’s case, the
Defendants moved for a Motion for Judgment of Acquittal
on the grounds that the State failed to prove a prima facie
case, and that they failed to prove the elements of construc-
tive possession as required by Alabama law. (Vol. II. RI-236
through RI-247). The trial judge denied the Defendar +s’
lotion stating: “The States case is hanging by a very very
thin thread. But I find that there is a thread that enables
them to overcome a motion for judgment of acquittal.” (Vol.
II. RT-247). At the close of the Defendants’ case, the jury
returned a verdict of guilty against both Donald B. and
Camila S. Lander. (Vol. II. CR-190 through CR-191). The
case was continued for presentencing investigation to the
24th of June, 1988, at which time the Honorable Judge Johi:
B. Bush sentenced Donald B. Lander to Fifteen (15) years in
the penitentiary, assessed a Twenty-Five Thousand Dollar
($25,000.00) fine, and ordered Fifteen Hundred Dollars
($1,500.00) to be paid to the Victim’s Compensation Crime
Fund. The Honorable Judge Bush sentenced Camilia S.
Lander to Five (5) years in the penitentiary, assessed a
Twenty-Five Thousand Dollar ($25,000.00) tine, and or-
dered her to pay Fifteen Hundred Dollars ($1,500.00) to the
Victim's Compensation Crime Fund. (Vol. l. CR-192
through CR-195). On the 24th of June, 1988, the Defendants
pertected an Appeal Bond in the above styled case. (Vol. J.
CR-196 through CR-197). The Defendants then tiled a
Motion for a New Trial on the 24th of June, 1988, which was
denied on August 9, 1988. (Voi. I. CR-198 through CR-205).
The Petitioners timeh tiled an Appeal to the Alabama Court
of Criminal Appeals on January 3, 1989, and the Alabama
Court of Criumimal Appeals affirmed the trial court in a
written opinion released on May 26, 1989. (Appendix
hereto). Phe Petitioners timely filed an Application tor
Rehearing, which was denied without opinion on June 30,
1988 (Appendix hereto). The Petitioners then umely filed a
Petition tor Writ of Certiorart to the Alabama Supreme
Court, which was demed without opinion December 1, 1989.
(Appendix hereto).
REASONS FOR GRANTING THE WRIT
I. Petitioners Were Denied Equal Protection Of The Law
Due To The State Of Alabama’s Failure To Follow
Their Own State Law On Constructive Possession Of
Controlled Substances. N
The Petitioners submit that the record is clear that they
were deprived of the equal protection of the law throughout
the course of the proceedings against them. Specifically, the
Petitioners assert that they were denied the equal protection
of the law through the failure of the State of Alabama to
teflow their own state law on constructive possession of
controlled substances. “it is doubtless true that the State may
act through different agencies, ------ either by its legislative,
its executive, or its judicial authorities; and the prohibition of
the amendments extend to ail actions of the State denying
equal protection of the laws, whether it be action by one of
these agencies, or by another.” Shelley v. Kraemer, 68 S.Ct. 836
at 842 (1948) citing Commonwealth of Virginia v. Rives, 1880,
100 U.S. 113, 118. 25 I. Ed. 667. In Twining v. New Jersey,
6
1908. 211 U.S. 78. 90, 91. 29 S.Ct. 14, 16. 53 L.Ed. 97, the
Court said: he judicial act of the highest court of the State.
in authoritatively construing and enforcing its laws, is the act
of the State.” Shelley, supra, went on to state: “State action, as
that phrase ts understood for the purposes of the Fourteenth
Amendment. refers to exertions of State power in all forms.
And when the effect of that action is to deny rights subject to
the protection of the Fourteenth Amendment, it is the
obligation of this Court to enforce the constitutional com-
mands.” Shelley at 845. The Alabama Supreme Court and the
\labama Court of Criminal Appeals have judicially and
authoritatively construed and enforced the laws of the State
of Alabama with respect to constructive possession. The
essential elements necessary for the proof of possession of
controlled substances in Alabama are:
„ Actual or potential physical control;
2. Intention to exercise dominion:
. External manifestations of intent and control.
Cook v. State, 341 So.2d 183 (Ala-Cr.App. 1977); DeGruy wv.
State, 56 Ala. App. 521, 323 So.2d 406, cert. denied, 295 Ala.
399, 323 So.2d 411 (1975); German wv. State, 429 $0.2d 1138
(Ala.Cr. App. 1983). When constructive possession is relied
on, a fourth element, that of knowledge of the presence of
the controlled substances, must be proven beyond a reason-
able doubt. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.).
rev'd on other grounds, 439 So.2d 723 (Ala. 1983) Yarbrough .
State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So0.2d 725
(Ala. 1981). The Alabama Supreme Coun, by denying the
Appellants’ Petition for Writ of Certiorari, and the Alabama
Court of Criminal Appeals, in issuing an opinion in conflict
with the above construction and progeny of Alabama state
law. denied the Petitioners the equal protection of the law as
guaranteed by the Fourteenth Amendment of the United
States Constitution.
~
A. Petitioners Were Denied Equal Protection Of The Law
Due To The State Of Alabama’s Failure 10 Follow
Their Own Laws On Constructive Possession Of Con-
trolled Substances.
1. Facts
On August 24, 1987, while passing over land in Autauga
County, agents with the Alabama Bureau of Investugation
observed what to them appeared to be marijuana. (Vol. I.
RI-11). As a result of their observation, marijuana was
seized on August 24, 1987, and the owners of the land,
Donald B. and Camilia S. Lander were arrested on October
20. 1987. During the trial of this case, ABI pilot Roy Sumya,
testified that he did not apprehend or see anyone in the field.
(Vol. I. KI-IS through RT-19). ABI Agent Charles West
testified that he did not see either Defendant during his
investigation of the field of marijuana either at home or in
the woods. (Vol. I. K 1-64. Vol. II. R1T-162). He further
testified that he found a paper bag inside a drying shed in
the woods, and that the bag had the letters “CAM” on tt.
‘Vol. II. RT-86). He also testified that he found a vellow
jacket that was dirty and in a wet condition in the woods. The
jacket had the name “Don L.” written on the back. (Vol. II.
R1-97). He testified that there were trails between the
different plots of marijuana and what appeared to be a trail
in the direction of the house. (Vol. I. RT-68). He stated that
he had no photographs, statements, fingerprints or other
evidence that would link the Defendants to the marijuana.
(Vol. II. KRI -S through RT-84, RT-123 through RT-124,
R 1-228. RI-137 through R1IT-234). After the State rested,
the Defendants made a Motion for Judgment of Acquittal in
that the State had failed to prove a prima facie case of
constructive possession. The trial court overruled the De-
fendants’ Motion observing: he State's case is hanging by a
very, very thin thread. But I find that there is a thread that
enables them to overcome a Motion for Judgment of Ac-
quittal.” (Vol. II. R1T-247). Because the trial court and the
appellate court failed to apply the Alabama laws of construc-
tive possession to the Petitioners’ case, the Petitioners were
8
denied the Equal Protection of the law as guaranteed by the
Fourteenth Amendment of the United States Constitution,
2. Deprivation Of Equal Protection Of The Law By The Trial
Courts Denying The Defendants’ Motion For Judgment Of
Acquittal And The Appellate Court's Affirmance Of The Trial
Court.
The State of Alabama failed to prove a prima facie case of
CONSEFUCLIVE Possession against the Defendants. There was
no proot of ownership, no proof of exclusive POSSESSION. no
fingerprints, or surveillance at the time of the seizure. nor
was anyone ever seen at or near the marijuana plants. Before
4 person can be convicted of trafficking in cannabis, the State
must prove beyond a reasonable doubt that he was in actual
or constructive possession of the substance. In this case, there
was no actual possession, so the State must have proved
constructive possession. The legal definition of “constructive
possession” is: “a phrase used in the law to characterize an
act, not amounting to an actual appropriation of property,
but which shows an intention to convert it to one’s own use.”
In Alabama, constructive possession arises only where the
illegal substance is found on the premises of or controlled by the
accused. (emphasis added). Campbell, supra; Williams vw.
State, 340 So.2d 1144 (Ala.Cr.App. 1976), cert. denied, 340
So.2d 1149 (Ala. 1977). In the case at bar, the State failed to
prove ownership of the property. Ownership and possession
of land must be proved by evidence as other facts are proved,
and neither can be proved by general notonety, nor by
reputation. The State attempted to prove ownership through
probate records of a copy of a quit claim issued to the
Defendants. (Vol. I. RT-46 to RT-51). Through testimony of
Ms. Betty Ward, a probate clerk, a certified copy of a copy ota
quit claim deed was introduced (Vol. I. RIAS) over the
objection of the Defendants. (Vol. I. RT-49). The objection
was based on no proper predicate being laid and the Best
Evidence Rule, and should have been sustained. As Hill v.
State, 394 So.2d 106 (Ala.Cr.App. 1981), notes, “parole
evidence is inadmissible to show title for ownership of real
property, when such ownership is based on title deeds,
9
without first having laid a predicate for its introduction.”
Hill, supra, cuung Withers v. State, 120 Ala. 394, 25 So. 568
(1898). The Court of Criminal Appeals in its written opinion
found that in the present case, ownership of the property
was proven. On Page 5 of its written opinion, (See Appendix)
the Court stated as follows: “Here a copy of a quit claim deed
was properly admitted into evidence, Lukes v. Alabama Power
Company, 57 Ala. 590, 593, 60 So.2d 349 (1952); Ala. Code
1975. Sec. 35-4-27.” It is clear trom the tesumony, however,
that a copy of a quit claim deed was not introduced, but a copy
of a copy of the quit claim deed was introduced. (Vol. I,
RI-48). Mcklroy’s Alabama Evidence Section 226.02 states as
follows:
If the party's clam of ownership of land is disputed
by an adverse claimant thereto, oral testimony that
the party owns the land, or as to the contents of
deeds and instruments of conveyance to him, is not
admissible without production, or showing an ex-
cuse for nonproduction, of the original document or a
duly authenticated copy of the probate judge's record
thereof if such copy is obtainable. (emphasis added)
In this case, no proper predicate had been laid, nor does a
copy of a copy meet the standards of McElroy’s. The Court of
Criminal Appeals said, “Because the claim of ownership was
not disputed, oral testimony was admissible to prove that
fact.” (page 5). The claim of ownership, however, was highly
disputed as can be seen from the transcript, and the Landers
argument in favor of their Motion for Judgment of Acquit-
tal. (Vol. II. RT-236 to RT-247). The Court of Criminal
Appeals also said that “At trial, both Defendants testified and
admitted ownership of the property involved.” (page 5).
However, only evidence that has been presented at the ume
that the Motion for Judgment of Acquittal is made should be
taken into consideration in granting or overruling the mo-
tion. At the time the Motion for Judgment of Acquittal was
made, the Landers had not testified to anything or admitted
ownership of the property.
Even had the State proved ownership, they still failed to
show a prima facie case of Constructive possession. There was
10 -
no proof of exclusive possession by the Defendants, no
fingerprints (Vol. II. KI-123 to RT-124, RT-149 to RT-162,
R1I-228 to RI-238), no surveillance at the time of the
discovery, (Vol. II. RT-162, RT-166 through RT-172), and
no one was ever seen ator near the marijuana (Vol. I. RT-18
to RIT-1ly, Vol. II. RT-167 to RT-172, RT-207 to RT-214).
There was insufficient evidence to meet the standards for
constructive possession. In 1977, the Alabama Court of
Criminal Appeals in Cook v. State, 341 So.2d 183
(Ala.Cr.App. 1977), cing DeGruy v. State, 56 Ala. pp. 521,
323 So.2d 406. cert. denied, 295 Ala. 399, 323 So.2d 411
(1975). set forth the three essential elements necessary fon
the proof of possession of controlled substances. The ele-
ments are:
I. actual or potential physical control:
2. intention to exercise dominion: and
Z. external manifestations of intent and control.
See also, Franklin v. State, 437 So.2d 609 (Ala.Cr. App. 1983):
German Stute, 429 So.2d 1138 (Ala.Cr. App. 1983); Scrafford
v. State, 414 So.2d 179 (Ala.Cr.App. 1981): Collins v. State,
391 So.2d 1078 (Ala.Cr.App. 1979); McCord v. State, 373
So.2d 1241 (Ala.Cr.App. 1979); Williams v. State, 340 So.2d
1144 (Ala.C1 App.). cert. denied, 340 So.2d 1149 ( 1977): Lee v.
State, 350 So.2d 743 (Ala.Cr.App. 1977). When constructive
possession is relied on, the prosecution must meet a heavy
burden; they must prove beyond a reasonable doubt that the
accused had knowledge of the presence of the controlled
substances. Campbell, supra; Yarbrough v. State, 405 So.2d 721
(Ala.Cr.App.). cert. denied, 405 So.2d 725 (Ala. 1981); Grubbs
vu. State, 462 So.2d 995 (Ala.Cr.App. 1984); White v. State, 479
So.2d 1368 (Ala.Cr.App. 1985). Proof of constructive posses-
sion alone will not justify a conviction. Cook, supra; Coker v.
State, 25 Ala.App. 191, 143 So. 206 (1932). “The fundamen-
tal purpose of the knowledge requirement is founded on the
legal theory that a person is cloaked with a presumption of
innocence until proven guilty, and, consequently, the State,
to obtain a conviction, must show that the evidence excludes
all rational conclusions except that of the Defendant's guilt.”
Temple v. State, 366 So.2d 740 (Ala.Cr.App. 1978).
Knowlege can be inferred from the accused's exclusive
possession, ownership, and control. Temple, supra. There was
testimony that the Defendants had had trespassers on the
property from time to time and that some things had come
up missing from the farrowing shed. (Vol. II. KI-277 to
RI-278 and R1I-287 to RT-288). That shows that the Defen-
dants did not have exclusive possession, ownership, and
control of the premises. The State did not attempt to prove
otherwise. Temple, supra, goes on to state that when the
accused does not have exclusive possession of the premises
where a controlled substance is found, some other cor-
roborating Circumstances must exist before the accused can
be convicted of illegal possession. “Where a person is in
possession, but not exclusive possession of the premises, it
may not be inferred that he knew of the presence of any
controlled substance found there unless there are other
circumstances tending to buttress this inference.” Korreckt v.
State, 507 So.2d 558 (Ala.Cr.App. 1986), Temple, surpa. Some
evidence that connects the accused with the contraband is
required. Guilty knowledge can be proved by evidence of
acts, or conduct of accused, from which it may be fairly
inferred that he knew of the existence of the contraband at
the place where it was found. Donahoo v. State, 505 So.2d
1067 (Ala.Cr.App. 1986). The only evidence that even re-
motely connects the Defendants in this case to the marijuana
is a dispute over some trails in the densely wooded area
where the plots were found, (Vol. II. RT-253 to RT-268).
The only attempt the State made to show evidence of trails
was through the tesumony of ABIL Agent Charles West and
ex-agent, Stephen Lindsay. The trails they testified to were
im an admittedly rural, marshy, densley-wooded area, where
a machete was necessary to cut through the growth. (Vol. I.
RI-31 to RIE-32, R I-68. Vol. II. RT-102 to RT-105, RT-156
to RI-159, K-97, R1T-204). There were also many animals
in the woods. (Vol. II. RT-156 to RT-159). There were not,
however, any pictures, notes, diagrams or contemporaneous
records to show the location or existence of the “trails”. (Vol.
II. RI-83 to RI-85, RI-I59 to RT-161). This testimony was
insuffident to show constructive possession or knowledge.
12
There was a raincoat and a paper bag that could have
belonged to the Detendaits found near the scene of the
seizure, both of which were like numerous similar items used
in and around the Defendants’ home and farrowing shed,
and were accessible to outsiders. (Vol. II. R1-274 to R1T-276,
RI-286 to RIT-287, RI-297 to RT-298). The State attempted
to show knowledge through these two items. Once again,
however, there was a notable lack of detail and accuracy :
surrounding the items. Although numerous pictures were
taken at the scene of the seizure and introduced as evidence,
no pictures, notes, drawings or contemporaneous records
were made regarding the two key pieces of evidence which.
could have linked the Defendants to the marijuana. (Vol. 41.
RI-83 to RT-84, RI-113 to RI-IIS. RI-121, RT-128 to
RI-130. RT-138 to RT-141, RI-I43 to RT-156, RT-160 to
RI-161). In fact, the ABI agents detaced, altered and
commingled the paper bags and wrote prejudicial remarks
on them. (Vol. II. RI-87, RI-89 to RI-90). Despite the
numerous objections of Defendants’ counsel, these items
were allowed into evidence. (Vol. II. RT-84, RIT-87, RI-90.
RI-I12. RIT-121).
The State failed in every respect to prove a prima facie case
of constructive possession. The case ai bar is similar to
Woolridge v. State, 489 So.2d 703 (Ala.Cr.App. 1986); and
Crafts v. State, 439 So.2d-1323 (Ala.Cr.App. 1983). In Wool-
ridge, supra, several trails led from the defendant's trailer to
woods where marijuana was discovered growing. Seeds were
found in an oil can near the edge of the field about 75 vards
from the trailer. There were also some scales and pills found
inside the trailer. No one was ever found at the trailer or neat
the plot. Ihe Court of Criminal Appeals held that there was
insufficient evidence to establish that the defendant was in
constructive possession of the contraband. The instant case
does not even rise to the level of Woolridge, supra. The “trails”
are disputed and there was no ciear evidence that they existed.
The marijuana was much farther away from the house (Vol I.
R 1-67 and Vol. II. RT-258), two hundred yards as compared
to seventy-five, and in a densely-wooded area, and the only
evidence even remotely linking is the raincoat and paper bag.
— ß ß
13
In Crafts, supra, the Court of Criminal Appeals again held
that evidence was insufficient to convict the defendant. The
local sheriff had been informed that the defendant was
dealing in marijuana. A marijuana field was discovered in an
aerial survey behind a barn, approximately 125-150 feet
trom the defendant's back porch. The defendant was not at
home at the time of the seizure and was never seen at home
or near the marijuana. The marijuana was growing in
between corn plants in the garden, and several plants were
drying at the edge of the woods, twenty to fifty feet behind
the garden. The Court said that “the evidence is notable for
its lack of detail and for the absence of information connect-
ing the defendant with the growing marijuana.” Crafts, supra,
at p. 1324. “Reduced to fundamentals, all the State showed
was that the defendant's residence abutted land on which
marijuana was growing.” Crafts, supra, at p. 1325
Here, there was no showing that the marijuana
plants were growing on the defendant's exclusively
owned and occupied residential lot... There was
no showing that the defendant owned and was in
exclusive possession of the property on which the
maryuana was growing. . . At best, the testimony in this
case merely raises a suspicion 1 that the marijuana belonged
6% the defendant... No rule is more fundamental or bette)
settled than that | convictions cannot be predicated upon
surmises, Speculation, and suspicion to establish the ac-
cused’s criminal agency in the offense charged ... Here
the fact that the marijuana plants were in close
proximity to the defendant's residence and the
Shentfs testimon that he had been told that the
defendant had been dealing in marijuana merel)
showed a possibility that this defendant may have commit-
ted the offense. “However, the possibility that a thing may
occur is not alone evidence, even circumstantially, that the
thing did occur.” ... Here, the tacts and circum—
stances only give rise to a suspicion of guilt and are
insufficient to support the conviction. Crafts, supra,
at p. 1325 (emphasis added).
Finally, the Court held that “although the evidence may have
been sufficient to show potential control, there was no
14
showing of the defendant's intention to exercise dominion
and external manifestation of intent and control.” Crafts,
supra, at p. 1325. In Crafts, there was a foot or two between
the garden and the area of the yard, and there was also
evidence that the Defendant had been dealing in marijuana.
In the instant case, there are no allegations of the Landers
dealing in marijuana, nor is the proximity between the
Lander’s usable portion of the land and the marijuana plants :
nearly as close as “a foot or two” as in Crafts. In addition, no
one was at home at the time of the seizure. (Vol. I. RT-64).
The Detendants’ convictions were based on speculation,
suspicion and surmise, which as noted above, is insufficient
to support a conviction. Other than the raimcoat and the
paper bag, there is no evidence to connect the Defendants
with the marijuana. Both of these items are innocent and do
not tend to support guilt. Raincoats and paper bags have no
particular connection to cultivating marijuana, and are items
used by people everyday in their ordinary course of business.
They are not incriminating items special to the marijuana
trade. In addition, no pictures were taken of the location of
the two key pieces of circumstantial evidence. (Vol. II.
RI-137 to RT-141). Evidence was burned and destroyed
(Vol. II. RT-108, RT-163 through RT-166, RT-219 through
R 1-220), altered, commingled and defaced (Vol. II. R1T-86
through K-87, RI-89 through RT-90, RT-111 through
RI-122 and RT-145). No surveillance was done at the time
of the seizure. (Vol. II. RT-162, RT-166 through RT-172),
nor was anyone ever seen at or near the mariyuana either at
the time of the seizure (Vol. I. RT-18 through RI-19 Voi.
II. RI-162), or at the time of the late night surveillance (Vol.
II. RI-207 through RT-214). No measurements or diagrams
of the scene of the seizure or of the distance between the
plots themselves and the plots and the house were done.
(Vol. II. RT-181 through RT-183, RT-210 through RT-214).
In fact, the agents did not even know how many plants they
seized out of each plot. (Vol. II. RT-129).
In German v. State, supra, the Court stated: “Constructive
possession may be determined by weighing those facts which
tend to support the defendant's necessary control over the
a W e e e eee
substance against those facts which demonstrate a lack of
dominion and control.” at p. 1140, citing Roberts State, 349
So.2d at 91 (Ala.Cr.App.), cert. denied, Ex parte Roberts, 349
So.2d 94 (Ala. 1977). In this case, the facts supporting the
Defendants lack of dominion and control substantially out-
weigh the facts tending to support the Defendants necessary
control.
The State simply failed in all aspects to prove constructive
possession. There was no proof of: 1. Actual or potenual
physical control; 2. Intention to exercise dominion; and
3. External manifestations of intent and control, nor was
there proof beyond a reasonable doubt that the Defendants
had knowledge of the marijuana. Because the evidence
presented by the State could not support a rational inference
by the jury that the Defendants had knowledge of the
contraband, the State failed to prove beyond a reasonable
doubt that the Defendants had constructive possession of the
maryuana.
he Court of Criminal Appeals in its written opinion (See
Appendix) tailed to follow the Alabama laws of constructive
possession by finding the ownership of the land was properly
proven, and by failing to follow their own opinion in Crafts,
supra. In Crafts, the Court of Criminal Appeals held that:
While the ownership and exclusive possession of the
property on which the marijuana is found may
warrant a jury in finding that the accused was
growing the illegal plant, Puckett v. State, 13
Md. App. 584, 284 A.2d 252 (1971), the proof in this
case does not rise to that level. Here, the evidence is
notable for its lack of detail and for the absence of
information connecting the defendant with the
growing Marijuana.
Although the Sheriff “assumed” that the Defendant
planted the corn in the garden behind his house
and yard, the State never attempted to establish who
owned or possessed, or had control over the prop-
erty on which the marijuana was growing.
Reduced to fundamentals, all the State showed was
that the Defendant's residence abutted the land on
16
which marijuana was growing. ... Here the facts
and circumstances only give rise to a suspicion of
guilt and are insufficient to support the conviction.
Thomas v. State, 363 So.2d 1020 (Ala.Cr.App. 1978);
Crafts, 439 So.2d at 1324-1325.
The Court .of Criminal Appeals in Crafts, found that
marijuana growing in between corn plants in a garden
approximately 125-150 feet from the defendant's back porch
was Insufficient to prove that he constructively possessed the
marijuana. Surely the facts in the instant case do not prove
constructive possession of mariyuana, and the Court of
Criminal Appeals was wrong in affirming the trial court and
the Alabama Supreme Court erred in failing to grant the
Appellants Petition for Writ of Certiorari. The Court of
Criminal Appeals in its opinion at Page 5 (See Appendix)
also used the wrong standard in finding that the State
properly proved ownership of the land. The Court of
Criminal Appeals stated: “At trial, both Defendants testified
and admitted ownership of the property involved.” How-
ever, it Should be strongly noted that at the time the motion
for judgment of acquittal was made at the end of the State's
case, neither Defendant had yet taken the stand. The Court
of Criminal Appeals, therefore, erred in using that factor to
find that it proved ownership. The Petitioners were denied
equal protection of the laws in that aspect, as well as, the
aspect of constructive possession. The Petitioners were de-
nied the equal protection of the laws by the Court of
Criminal Appeals’ failure to follow their own laws, and by
them being singled out by the State as persons to be treated
as such without the State of Alabama changing its laws. If the
State of Alabama had wanted to make it easier to prove
constructive possession, they should have so changed th laws,
instead of misapplying them to the Petitioners. The Supreme
Court in the State of Louisiana v. Resweber, 67 S.Ct. 374 at 377
stated: “So long as the law applies to all alike, the require-
ments of equal protection are met.” It is obvious in this case
that the Alabama Supreme Court and the Alabama Court of
Criminal Appeals did not apply the laws of Alabama to the
Petitioners, and that they were, therefore, denied the equal
³ĩͤöꝓ7ꝛ
17
protection of the laws. For these reasons, the Petitioners
respectfully submit that this Court should grant their Writ.
CONCLUSION
For these reasons, both separately and severally, and to
prevent a miscarriage of justice, the Petitioners pray that a
Writ of Certiorari issue to review the Judgment of the
Alabama Supreme Court.
Respectfully submitted
DAVID S. LUKER
Luker and Brewer
Barrister Hall
2205 Morris Avenue
Birmingham, AL 35203
(205) 251-6666
OF COUNSEL:
TAMERA K. ERSKINE
Luker & Brewe1
Barrister Hall
2205 Morris Avenue
Birmingham, AL 35203
(205) 251-6666
APPENDIX
6
1908, 211 U.S. 78, 90, 91, 29 S.Ct. 14, 16, 53 L.Ed. 97, the
Court said: “The judicial act of the highest court of the State,
in authoritatively construing and enforcing its laws, is the act
of the State.” Shelley, supra, went on to state: “State action, as
that phrase is understood for the purposes of the Fourteenth
Amendment, refers to exertions of State power in all forms.
And when the effect of that action is to deny rights subject to
the protection of the Fourteenth Amendment, it is the
obligation of this Court to enforce the constitutional com-
mands.” Shelley at 845. The Alabama Supreme Court and the
Alabama Court of Criminal Appeals have judicially and
authoritatively construed and enforced the laws of the State
of Alabama with respect to constructive possession. The
essential elements necessary for the proof of possession of
controlled substances in Alabama are:
I. Actual or potential physical control:
2. Intention to exercise dominion:
J. External manifestations of intent and control.
Cook v. State, 341 So.2d 183 (Ala.Cr.App. 1977); DeGruy +
State, 56 Ala. App. 521, 323 So0.2d 406, cert. denied, 295 Ala.
399, 323 So.2d 411 (1975); German , State, 429 So.2d 1138
(Ala.Cr.App. 1983). When constructive possession is relied
on, a fourth element, that of knowledge of the presence of
the controlled substances, must be proven beyond a reason-
able doubt. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.).
rev'd on other grounds, 439 So.2d 723 (Ala. 1983): Yarbrough wv.
State, 405 So.2d 721 (Ala.Cr.App.), cert. dened, 405 So.2d 725
(Ala. 1981). The Alabama Supreme Court, by denying the
Appellants’ Petition for Writ of Certiorari, and the Alabama
Court of Criminal Appeals, in issuing an opinion in conflict
with the above construction and progeny of Alabama state
law, denied the Petitioners the equal protection of the law as
guaranteed by the Fourteenth Amendment of the United
States Constitution,
7
A. Petitioners Were Denied Equal Protection Of The Law
Due To The State Of Alabama’s Failure To Follow
Their Own Laws On Constructive Possession Of Con-
trolled Substances.
1. Fact,
On August 24, 1987, while passing over land in Autauga
County, agents with the Alabama Bureau of Investigation
observed what to them appeared to be marijuana. (Vol. I.
KR I-II) As a result of their observation, marijuana was
seived on August 24, 1987, and the owners of the land,
Donald B. and Camilia S. Lander were arrested on October
20. 1987. During the trial of this case, ABI pilot Roy Sumja,
testified that he did not apprehend or see anyone in the field.
(Vol. I. RT-18 through R1I-19). ABI Agent Charles West
testified that he did not see either Defendant during his
investigation of the field of marijuana either at home or in
the woods. (Vol. I. K-64. Vol. II. RT-162). He further
testified that he found a paper bag inside a drying shed in
the woods, and that the bag had the letters “CAM” on it.
(Vol. II. RT-86). He also testified that he found a yellow
jacket that was dirty and in a wet condition in the woods. The
jacket had the name “Don L.” written on the back. (Vol. II.
R1-97). He testified that there were trails between the
different plots of marijuana and what appeared to be a trail
in the direction of the house. (Vol. 1, RT-68). He stated that
he had no photographs, statements, fingerprints or other
evidence that would link the Defendants to the marijuana.
(Vol. II. RT-83 through RT-84, RT-123 through RT-124,
RI 228. RT-137 through RT-234). After the State rested,
the Defendants made a Motion for Judgment of Acquittal in
that the State had failed to prove a prima facie case of
constructive possession, The trial court overruled the De-
fendants’ Motion observing: “ The State's case is hanging by a
very, very thin thread. But I find that there is a thread that
enables them to overcome a Motion for Judgment of Ac-
quittal.” (Vol. II. RT-247). Because the trial court and the
appellate court failed to apply the Alabama laws of construc-
tive possession to the Petitioners’ case, the Petitioners were
8
denied the Equal Protection of the law as guaranteed by the
Fourteenth Amendment of the United States Constitution.
2. Deprivation Of Equal Protection Of The Law By The Trial
Court's Denying The Defendants’ Motion For Judgment Of
Acquittal And The Appellate Court's Affirmance Of The Trial
Court.
The State of Alabama failed to prove a prima face case of
constructive possession against the Defendants. There was
no proof of ownership, no proof of exclusive possession, no
fingerprints, or surveillance at the time of the seizure, nor
was anyone ever seen at or near the marijuana plants. Before
a person can be convicted of trafficking in cannabis, the State
must prove beyond a reasonable doubt that he was in actual
or constructive possession of the substance. In this case, there
was no actual possession, so the State must have proved
constructive possession. The legal definition of “constructive
possession ts: “a phrase used in the law to characterize an
act, not amounting to an actual appropriation of property,
but which shows an intention to Convert it to one’s own use.”
In Alabama, constructive possession arises only where the
illegal substance is found on the premises of or controlled by the
accused. (emphasis added). Campbell, supra; Williams v.
State,340 So.2d 1144 (Ala.Cr.App. 1976), cert. denied, 340
So.2d 1149 (Ala. 1977). In the case at bar, the State failed to
prove ownership of the property. Ownership and possession
of land must be proved by evidence as other facts are proved,
and neither can be proved by general notoriety, nor by
reputation. The State attempted to prove ownership through
probate records of a copy of a quit claim issued to the
Defendants. (Vol. I. RT-46 to RT-51). Through tesumony of
Ms. Betty Ward, a probate clerk. a certified copy of a copy of a
quit claim deed was introduced (Vol. I. RT-48) over the
objection of the Defendants. (Vol. 1, RT-49). The objection
was based on no proper predicate being laid and the Best
Evidence Rule, and should have been sustained. As Hill v.
State, 394 So.2d 106 (Ala.Cr.App. 1981), notes, “parole
evidence is inadmissible to show title for ownership of real
property, when such ownership is based on ttle deeds,
——
9
without first having laid a predicate for its introduction.”
Hill, supra, citing Withers v. State, 120 Ala. 394, 25 So. 568
(1898). The Court of Criminal Appeals in its written opinion
found that in the present case, ownership of the property
was proven. On Page 5 of its written opinion, (See Appendix )
the Court stated as follows: “Here a copy of a quit claim deed
was properly admitted into evidence, Lukes v. Alabama Power
Company, 57 Ala. 590, 593, 60 So.2d 349 (1952); Ala.Code
1975, Sec. 35-4-27.” It is clear from the tesumony, however,
that a copy of a quit claim deed was not introduced, but a copy
of a copy of the quit claim deed was introduced. (Vol. I.
R1-48). Mcklroy’s Alabama Evidence Section 226.02 states as
follows:
If the partys claim of ownership of land is disputed
by an adverse claimant 8 oral testimony that
the party owns the land, or as to the contents of
deeds and instruments of KL to him, is not
admissible without production, or showing an ex-
cuse for nonproduction, of the original document or a
duly authenticated copy of the probate judge's record
thereof if such copy is obtainable. (emphasis added)
In this case, no proper predicate had been laid, nor does a
copy of a copy meet the standards of McElroy’s. The Court of
Criminal Appeals said, “Because the claim of ownership was
not disputed, oral testimony was admissible to prove that
fact.” (page 5). The claim of ownership, however, was highly
disputed as can be seen from the transcript, and the Landers’
argument in favor of their Motion for Judgment of Acquit-
tal. (Vol. II. RT-236 to RT-247). The Court of Criminal
Appeals also said that “At trial, both Defendants testified and
admitted ownership of the property involved.” (page 5).
However, only evidence that has been presented at the time
that the Motion for Judgment of Acquittal is made should be
taken into consideration in granting or overruling the mo-
tion. At the time the Motion for Judgment of Acquittal was
made, the Landers had not testified to anything or admitted
ownership of the property.
Even had the State proved ownership, they sull failed to
show a prima facie case of constructive possession. There was
eC .
10
no proof of exclusive possession by the Defendants, no
fingerprints (Vol. II. RT-123 to RT-124, RT-149 to RT-162,
RT-228 to RT-238), no surveillance at the time of the
discovery, (Vol. II. RT-162, RT-166 through RT-172), and
no one was ever seen at or near the marijuana (Vol. I. RT-18
to RT-19, Vol. II. RT-167 to RT-172, RT-207 to RT-214).
There was insufficient evidence to meet the standards for
constructive possession. In 1977, the Alabama Court of
Criminal Appeals in Cook v. State, 341 So.2d 183
(Ala.Cr.App. 1977), citing DeGruy v. State, 56 Ala.App. 521,
323 So.2d 406, cert. denied, 295 Ala. 399, 323 So.2d 411
(1975), set forth the three essential elements necessary for
the proof of possession of controlled substances. The ele-
ments are:
. actual or potential physical control;
2. intention to exercise dominion; and
3. external manifestations of intent and control.
See also, Franklin v. State, 437 So.2d 609 (Ala.Cr. App. 1983),
German v. State, 429 So.2d 1138 (Ala.Cr.App. 1983); Scrafford
v. State, 414 So.2d 179 (Ala.Cr.App. 1981); Collins v. State,
391 So.2d 1078 (Ala.Cr.App. 1979); McCord v. State, 373
So.2d 1241 (Ala.Cr.App. 1979); Williams v. State, 340 So.2d
1144 (Ala.Cr.App.), cert. denied, 340 So.2d 1149 ( 1977): Lee v.
State, 350 So.2d 743 (Ala.Cr.App. 1977). When constructive
possession is relied on, the prosecution must meet a heavy
burden; they must prove beyond a reasonable doubt that the
accused had knowledge of the presence of the controlled
substances. Campbell, supra; Yarbrough v. State, 405 So.2d 721
(Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala. 1981); Grubbs
uv. State, 462 So.2d 995 (Ala. Cr. App. 1984); White v. State, 479
So.2d 1368 (Ala.Cr.App. 1985). Proof of constructive posses-
sion alone will not justify a conviction. Cook, supra; Coker v.
State, 25 Ala.App. 191, 143 So. 206 (1932). “The fundamen-
tal purpose of the knowledge requirement is founded on the
legal theory that a person is cloaked with a presumpuon of
innocence until proven guilty, and, consequently, the State,
to obtain a conviction, must show that the evidence excludes
all rational conclusions except that of the Defendant's guilt.”
Temple v. State, 366 So.2d 740 (Ala.Cr.App. 1978).
Knowlege can be interred from the accused’s exclusive
possession, ownership, and control. Temple, supra. There was
tesumony that the Defendants had had trespassers on their
property from time to time and that some things had come
up missing from the farrowing shed. (Vol. II. RI-277 to
R1-278 and RT-287 to RT-288). That shows that the Defen-
dants did not have exclusive possession, ownership, and
control of the premises. The State did not attempt to prove
otherwise. Temple, supra, goes on to state that when the
accused does not have exclusive possession of the premises
where a controlled substance is found, some other cor-
roborating circumstances must exist before the accused can
be convicted of illegal possession. “Where a person is in
possession, but not exclusive possession of the premises, it
may not be inferred that he knew of the presence of any
controlled substance found there unless there are other
circumstances tending to buttress this inference.” Korreckt v.
State, 507 So.2d 558 (Ala.Cr. App. 1986); Temple, surpa. Some
evidence that connects the accused with the contraband is
required, Guilty knowledge can be proved by evidence of
acts, or conduct of accused, from which it may be fairly
inferred that he knew of the existence of the contraband at
the place where wt was found. Donahoo v. State, 505 So.2d
1067 (Ala.Cr.App. 1986). The only evidence that even re-
motely connects the Defendants in this case to the marijuana
is a dispute over some trails in the densely wooded area
where the plots were found. (Vol. II. RT-253 to RT-268).
The only attempt the State made to show evidence of trails
was through the tesumony of ABI Agent Charles West and
ex-agent, Stephen Lindsay. The trails they testified to were
in an admittedly rural, marshy, densley-wooded area, where
a machete was necessary to cut through the growth. (Vol. I,
R1I-31 to RT-32, RT-68, Vol. II. RT-102 to RT-105, RT-156
to RT-159, RT-197, RT-204). There were also many animals
in the woods. (Vol. II. RT-156 to RT-159). There were not,
however, any pictures, notes, diagrams or contemporaneous
records to show the location or existence of the “trails”. (Vol.
II. RI-83 to RT-85, RT-159 to RT-161). This testimony was
insufficient to show constructive possession or knowledge.
12
There was a raincoat and a paper bag that could have
belonged to the Defendaints found near the scene of the
seizure, both of which were like numerous similar items used
in and around the Defendants’ home and farrowing shed,
and were accessible to outsiders. (Vol. II. RT-274 to RT-276,
RT-286 to RT-287, RT-297 to RT-298). The State attempted
to show knowledge through these two items. Once again,
however, there was a notable lack of detail and accuracy
surrounding the items. Although numerous pictures were
taken at the scene of the seizure and introduced as evidence,
no pictures, notes, drawings or contemporaneous records
were made regarding the two key pieces of evidence which
could have linked the Defendants to the marijuana. (Vol. II.
K I-83 to RT-84, RT-113 to RT-118, RT-121, RT-128 to
RT-130, KI-138 to RT-141, RT-143 to RT-156, RT-160 to
RJ-161). In fact, the ABI agents defaced, altered and
commingled the paper bags and wrote prejudicial remarks
on them. (Vol. II. RT-87, RT-89 to RT-90). Despite the
numerous objections of Defendants’ counsel, these items
were allowed into evidence. (Vol. II. RT-84, RT-87, RT-90,
RT-112, RT-121).
The State failed in every respect to prove a prima facie case
of constructive possession. The case at bar is similar to
Woolridge v. State, 489 So.2d 703 (Ala.Ci.App. 1986); and
Crafts v. State, 439 So.2d 1323 (Ala.Cr.App. 1983). In Wool-
ridge, supra, several trails led from the defendant's trailer to
woods where marijuana was discovered growing. Seeds were
found in an oil can near the edge of the field about 75 yards
from the trailer. There were also some scales and pills found
inside the trailer. No one was ever found at the trailer or near
the plot. The Court of Criminal Appeals held that there was
insufficient evidence to establish that the defendant was in
constructive possession of the contraband. The instant case
does not even rise to the level of Woolridge, supra. The “trails”
are disputed and there was no clear evidence that they existed.
The marijuana was much farther away from the house (Vol I.
RT-67 and Vol. II. RT-258), two hundred yards as compared
to seventy-five, and in a densely-wooded area, and the only
evidence even remotely linking is the raincoat and paper bag.
13
In Crafts, supra, the Court of Criminal Appeals again held
that evidence was insufficient to convict the defendant. The
local sheriff had been informed that the defendant was
dealing in marijuana. A marijuana field was discovered in an
aerial survey behind a barn, approximately 125-150 feet
from the defendant's back porch. The defendant was not at
home at the time of the seizure and was never seen at home
or near the marijuana. The marijuana was growing in
between corn plants in the garden, and several plants were
drying at the edge of the woods, twenty to fifty feet behind
the garden. The Court said that “the evidence is notable for
its lack of detail and for the absence of information connect-
ing the defendant with the growing marijuana.” Crafts, supra,
at p. 1324. “Reduced to fundamentals, all the State showed
was that the defendant's residence abutted land on which
marijuana was growing.” Crafts, supra, at p. 1325.
Here, there was no showing that the marijuana
plants were growing on the defendant's exclusively.
owned and occupied residential lot... There was
no showing that the defendant owned and was in
exclusive possession of the property on which the
marijuana was growing. . . At best, the testimony in this
case merely raises a suspicion 1 that the marijuana belonged
to the defendant... No rule is more fundamental or better
settled than that convi tions cannot be predicated upon
surmises, speculation, and suspicion to establish the de-
cused’s criminal agency in the offense charged .. Here
the fact that the marijuana piants were in close
proximity to the detendant’s residence and the
Sheriff's testimony that he had been told that the
defendant had been dealing in marijuana merely
showed a possibility that this defendant may have commit-
ted the offense. “However, the possibility that a thing may
occur is not alone evidenc e, even circumstantially, that the
thing did occur.” ... Here, the facts and circum—
stances only give rise to a suspicion of guiit and are
insufficient to support the conviction. Crafts, supra,
at p. 1325 (emphasis added).
Finally, the Court held that “although the evidence may have
been sufficient to show potential control, there was no
14
showing of the defendant's intention to exercise dominion
and external manifestation of intent and control.” Crafts,
supra, at p. 1325. In Crafts, there was a foot or two between
the garden and the area of the yard, and there was also
evidence that the Defendant had been dealing in marijuana.
In the instant case, there are no allegations of the Landers
dealing in marijuana, nor is the proximity between the
Lander’s usable portion of the land and the marijuana plants
nearly as close as “a foot or two” as in Crafts. In addition, no
one was at home at the time of the seizure. (Vol. I, RT-64).
The Defendants’ convictions were based on speculation,
suspicion and surmise, which as noted above, is insufficient
to support a conviction. Other than the raincoat and the
paper bag, there is no evidence to connect the Defendants
with the marijuana. Both of these items are innocent and do
not tend to support guilt. Raincoats and paper bags have no
particular connection to cultivating marijuana, and are items
used by people everyday in their ordinary course of business.
They are not incriminating items special to the marijuana
trade. In addition, no pictures were taken of the location of
the two key pieces of circumstantial evidence. (Vol. II.
RT-137 to RT-141). Evidence was burned and destroyed
(Vol. II. RT-108, RT-163 through RT-166, RT-219 through
RT-220), altered, commingled and defaced (Vol. II. R1-86
through RT-87, RT-89 through RT-90, RT-111 through
RT-122 and RT-145). No surveillance was done at the time
of the seizure. (Vol. II, RT-162, RT-166 through RT-172),
nor was anyone ever seen at or near the marijuana either at
the time of the seizure (Vol. I, RT-18 through RT-19, Vol.
II. RT-162), or at the time of the late night surveillance (Vol.
II. RI-207 through RT-214). No measurements or diagrams
of the scene of the seizure or of the distance between the
plots themselves and the plots and the house were done.
(Vol. II. RT-181 through RT-183, RT-210 through RT-214).
In fact, the agents did not even know how many plants they
seized out of each plot. (Vol. II. RT-129).
In German v. State, supra, the Court stated: “Constructive
possession may be determined by weighing those facts which
tend to support the defendant's necessary control over the
— ——
15
substance against those facts which demonstrate a lack of
dominion and control.” at p. 1140, ating Roberts v. State, 349
So.2d at 91 (Ala.Cr.App.), cert. denied, Ex parte Roberts, 349
So.2d 94 (Ala. 1977). In this case, the facts supporting the
Defendants lack of dominion and control substantially out-
weigh the facts tending to support the Defendants necessary
control,
The State simply failed in all aspects to prove constructive
possession. There was no proof of: 1. Actual or potential
physical control; 2. Intention to exercise dominion; and
3. External manifestations of intent and control, nor was
there proof beyond a reasonable doubt that the Defendants
had knowledge of the marijuana. Because the evidence
presented by the State could not support a rational inference
by the jury that the Defendants had knowledge of the
contraband, the State failed to prove beyond a reasonable
doubt that the Defendants had constructive possession of the
marijuana.
The Court of Criminal Appeals in its written opinion (See
Appendix) failed to follow the Alabama laws of constructive
possession by finding the ownership of the land was properly
proven, and by failing to follow their own opinion in Crafts,
supra. In Crafts, the Court of Criminal Appeals held that:
While the ownership and exclusive possession of the
property on which the marijuana is found may
warrant a jury in finding that the accused was
growing the illegal plant, Puckett v. State, 13
Md. App. 584, 284 A.2d 252 (1971), the proof in this
case does not rise to that level. Here, the evidence is
notable for its lack of detail and for the absence of
information connecting the defendant with the
growing marijuana.
Although the Sheriff “assumed” that the Defendant
planted the corn in the garden behind his house
and yard, the State never attempted to establish who
owned or possessed, or had control over the prop-
erty on which the marijuana was growing.
Reduced to fundamentals, all the State showed was
that the Defendant's residence abutted the land on
16
which marijuana was growing.... Here the facts
and circumstances only give rise to a suspicion of
guilt and are insufficient to support the conviction.
Thomas v. State, 363 So.2d 1020 (Ala.Cr.App. 1978);
Crafts, 439 So.2d at 1324-1325.
The Court of Criminal Appeals in Crafts, found that
marijuana growing in between corn plants in a garden
approximately 125-150 feet from the defendant's back porch
was insufficient to prove that he constructively possessed the
marijuana. Surely the facts in the instant case do not prove
constructive possession of marijuana, and the Court of
Criminal Appeals was wrong in affirming the trial court and
the Alabama Supreme Court erred in failing to grant the
Appellant's Petition for Writ of Certiorant. The Court of
Criminal Appeals in its opinion at Page 5 (See Appendix)
also used the wrong standard in finding that the State
properly proved ownership of the land. The Court of
Criminal Appeals stated: “At trial, both Defendants testified
and admitted ownership of the property involved.” How-
ever, it should be strongly noted that at the time the motion
for judgment of acquittal was made at the end of the State's
case, neither Defendant had yet taken the stand. The Court
of Criminal Appeals, therefore, erred in using that factor to
find that it proved ownership. The Petitioners were denied
equal protection of the laws in that aspect, as well as, the
aspect of constructive possession. The Petitioners were de-
nied the equal protection of the laws by the Court of
Criminal Appeals’ failure to follow their own laws, and by
them being singled out by the State as persons to be treated
as such without the State of Alabama changing its laws. if the
State of Alabama had wanted to make it easier to prove
constructive possession, they should have so changed th laws,
instead of misapplying them to the Petitioners. Ihe Supreme
Court in the State of Louisiana v. Resweber, 67 S.Ct. 374 at 377
stated: “So long as the law applies to all alike, the require-
ments of equal protection are met.” It is obvious in this case
that the Alabama Supreme Court and the Alabama Court of
Criminal Appeals did not apply the laws of Alabama to the
Petitioners, and that they were, therefore, denied the equal
17
protection of the laws. For these reasons, the Petitioners
respectfully submit that this Court should grant their Writ.
CONCLUSION
For these reasons, both separately and severally, and to
prevent a miscarriage of justice, the Petitioners pray that a
Writ of Certiorari issue to review the Judgment of the
Alabama Supreme Court.
Respectfully submitted,
DAVID S. LUKER
Luker and Brewer
Barrister Hall
2205 Morris Avenue
Birmingham, AL 35203
(205) 251-6666
OF COUNSEL:
TAMERA K. ERSKINE
Luker & Brewer
Barrister Hall
2205 Morris Avenue
Birmingham, AI. 35203
(205) 251-6666
- APPENDIX
TABLE OF CONTENTS
. DECISIONS BELOW
A.
Decision of the Alabama Supreme Court,
Lander wv. State, 88-1328 (December 1, 1989),
Denying the Appellants’ Petition for Writ of
NE onde ⁵¼wtr ] ͤ ß evn vensee’s A-l
Decision of the Alabama Court of Criminal
Appeals, Lander v. State, 3 Div. 983,
(May 26, 1989), Affirming With Opinion
EA Srey ß ÿ⸗ A-12
Decision of the Alabama Court of Crimina!
Appeals, Lander wv. State, 3 Div. 983,
(June 30, 1989), Overruling Application
tr eae a eS ee eer A-19
FEDERAL QUESTIONS RAISED BELOW
A.
Issue Concerning Denial of Equal Protection
of the Law
1. Appeal Brief of the Alabama Court
of Criminal Appeals, State of Alabama v.
Camilia S. Lander and Donald B. Lander,
1 ⅛ a A ܳÜAÜ1Üir» * 20
2. Petition for Writ of Certioran
to the Alabama Supreme Court,
Ex parte „„ „„ „ A-2
A-1
THE STATE OF ALABAMA
JUDICIAL DEPARTMENT
IN THE SUPREME COURT OF ALABAMA
December 1, 1989
88-1328
Ex parte Camilia 8. Lander and Donald B. Lander
PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS
(Re: Camilia Saliba Lander and Donald Boyd Lander v.
State)
(CRC 3/983 (Autauga CC-88-011 and 012)
ORDER
The above cause having been duly submitted, IT IS
CONSIDERED AND ORDERED that the petition for writ of
certiorari is denied.
COSTS TAXED TO PETITIONER.
ALMON, J. — Hornsby, CI. Maddox, Adams and
Steagall, II. concur.
I. Robert G. Esdale, as Clerk of the Supreme Court of
Alabama, do hereby certify that the foregoing is a full, true
and correct copy of the instrument(s) herewith set out as
same appear(s) of record in said Court.
Witness my hand this | day of Dec., 1989.
/s/ Robert G. Esdale
Clerk, Supreme Court
of Alabama
A-2
IN THE SUPREME COURT OF ALABAMA
S.C. No.
EX PARTE:
CAMILIA S. LANDER AND DONALD B. LANDER,
Petitioners,
IN RE:
CAMILIA S. LANDER AND DONALD B. LANDER,
Appellants,
VS.
THE STATE OF ALABAMA,
Appellee.
ON APPEAL FROM THE
AUTAUGA COUNTY CIRCUTT COURT
NINETEENTH JUDICIAL CIRCUIT OF ALABAMA
(CASE NO. CC 88-011 AND CC 88-012)
PETITION FOR WRIT OF CERTIORARI
TO THE HONORABLE COURT OF
CRIMINAL APPEALS OF ALABAMA
(3RD Div 983)
DAVID S. LUKER
ATTORNEY FOR
PETITIONERS
2205 Morris Avenue
Birmingham, AL 35203
(205) 251-6666
A-3
TO THE HONORABLE CHIEF JUSTICE AND THE
HONORABLE ASSOCIATE JUSTICES OF THE
SUPREME COURT OF Al ABAMA:
Come now your Petitioners, Donald B. and Camiha 8.
Lander, by and through their undersigned attorney, and
petitions this Honorable Court for a Writ of Certiorari to
issue to the Honorable Court of Criminal Appeals of Ala-
bama in the above styled cause pursuant to Rules 39 and 41
of the Alabama Rules of Appellate Procedure, and as grounds
theretore, shows the following:
1. That the Petitioners were convicted of trafficking in
cannabis on May 12, 1988 in Autauga County, Case No. CC
88-011 and CC 88-012. The Honorable Judge John B. Bush
sentenced the Defendant, Donald B. Lander to fifteen (15)
years in the penitentiary, assessed a Twenty-five Thousand
Dollar ($25,000.00) fine, and ordered Fifteen Hundred
Dollars ($1,500.00) be paid to the Victim's Compensation
Crime Fund. Camilia S. Lander was sentenced to five (5)
years in the penitentiary, Twenty-five Thousand Dollars
($25,000.00) fine, and ordered to pay Fifteen Hundred
Dollars ($1,500.00) to the Victim’s Compensation Crime
Fund. On June 24, 1988, the Defendant's perfected an
Appeal Bond and filed a Motion for a New Trial, which was
denied on August 9, 1988. On January 3, 1989, the Court of
Criminal Appeals of Alabama denied Defendants’ oral ar-
gument request, and the Appeal was submitted. On May 26,
1989, the Alabama Court of Criminal Appeals affirmed the
judgment of the Circuit Court of Autauga County, Alabama
in a written opinion. An Application for Rehearing was filed
on June 7, 1989, and was overruled on June 30, 1989, with
no opinion.
2. A copy of the certificate of the intermediate appellate
court is attached to this Petition, which shows the Court of
Criminal Appeals number to be 3rd Division, 983. (See
Exhibit A attached hereto).
3. Pursuant to Rules 39 and 40 of the Alabama Rules of
Appellate Procedure, the Defendants filed an additional briet
and argument in support of their Application for Rehearing,
A-4
and assigned errors to the opinion released by the Court of
Criminal Appeals of Alabama on May 26, 1989, a copy of
which is attached hereto. (See Exhibit B).
4. The basis of the Petition is as follows:
at
Pursuant to Rule 39(c)(4) of the Alabama Rules of Appellate
Procedure, the Petitioners assert that the issues raised in
Argument I of their Brief on Appeal were incorrectly
decided by the intermediate Appellate Court in their opinion
released on May 26, 1989, and are in direct conflict with the
opinion of the Alabama Supreme Court in Lukes v. Alabama
Power Company, 357 Ala. 590. 60 So.2d 349 (1952). Dolvin v.
State, 391 So.2d 133 (Ala. 1980); with the decision of the
Alabama Court of Criminal Appeals in Crafts v. State, 439
So.2d 1323 (Ala.Cr.App. 1983), Cumbo v. State, 368 So.2d 871
(Ala.Cr.App. 1978). cert. denied, 368 So.2d 877 (Ala. 1979)
and German State, 429 So.2d 1138 (Ala.Cr.App. 1983); with
the Code of Alabama, (1975), Section 35-4-27 and McElroy’s
Alabama Evidence Section 226.02.
In Dolvin and Cumbo, supra, the Court set out the rules for
reviewing a conviction based on circumstantial evidence. “In
reviewing a conviction based on circumstantial evidence, this
court must view that evidence in the light most favorable to
the prosecution. The test to be applied is whether the jury
might reasonably find that the evidence excluded every
reasonable hypothesis except that of guilt; not whether such
evidence excludes every reasonable hypothesis but guilt, but
whether a jury might reasonably so conclude.” (Dolu.n at
672). In this case, even when the evidence is viewed in the
light most favorable to the prosecution, it is insufficient to
allow the submission of the Lander’s guilt or innocence to go
to the jury. The Court of Criminal Appeals in its opinion
found the testimony of ex-Deputy Steven Lindsey to be
credible, and afforded it the most weight. On pages 3 and 4
of the Court of Criminal Appeals’ Opinion, more than a
“legitimate inference” than can be reasonably drawn was
given to ex-Depuiy Lindsey's testimony. Of all of the wit-
A-5
nesses, ex-Deputy Lindsey was the least believable. He had to
be cautioned by the Judge several times for drawing conclu-
sions, characterizing his testimony, and enhancing his tes-
timony to make it sound better. (Vol. II RT-200, RT-210,
RT-202, RT-203, RT-205). On pages 3 and 4 of the Court of
Criminal Appeals’ Opinion, that same enhanced testimony
was found to be a fact.
Ex-Deputy Lindsey's testimony regarding the existence of
the trails was in conflict with ABI Agent Charles West's
testimony that the trails were in a rural, marshy, densely
wooded area, where a machete was necessary to cut through
the growth. (Vol. I RT-31 to RT-32, RT-68, Vol. II RT-102
to RT-105, RT-156 to RT-159, RT-97, RT-204). Agent West,
who was in charge of the investigation, gave testimony that
conflicted with the testimony of ex-Deputy Lindsey. From
the location of the garden, the alleged trails went down into a
swampy area, and it is reasonable to assume that deer, turkey
and other wildlife came out of the woods and made a path to
the garden. Ex-Deputy Lindsey himself testified that there
were many animals in the woods. (Vol. II RT-156 to RT-
159).
Despite the fact that all of the agents and officers involved
in the investigation had been trained in this type of investi-
gation, they made no pictures, diagrams or contemporane-
ous records to show the location or existence of the alleged
trails. (Vol. I RT-83 to RT-85, RT-159 to RT-i61). When
ex-Deputy Lindsey’s testimony is looked at in conjunction
with Agent West's testimony, and even when contrasted with
some of his own testimony, it is clear that the Court of
Criminal Appeals gave it too much weight and credibility.
Looking at the State’s testimony in its most favorable light,
does not mean turning a blind eye to obvious discrepancies,
and the lack of credibility in ex Deputy Lindsey's testimony.
The existence of the trails was highly disputed, and even if
they were taken as fact, they are not enough to prove the
Landers’ guilt.
A-6
*
The Court of Criminal Appeals in its written opinion,
found that there were distinguishing material differences
between the evidence in Crafts v. State, supra, and the evi-
dence in the present case. The main distinguishing factors
that the Court of Criminal Appeals found was that in the
Landers’ case, ownership of the property was proved. Own-
ership was not, however, proven. At the most, all the State
did was introduce a copy of a copy of a quitclaim deed over the
objection of the Defendant (Vol. I RT-48 to RT-49). The
Court of Criminal Appeals never addressed this issue. On
page 5 of its written opinion, the Court stated as follows:
“Here, a copy of the quitclaim deed was properly admitted
into evidence, Lukes v. Alabama Power Company, 257 Ala. 590,
593, 60 So.2d 349 (1952): Ala. Code 1975, Section 354-27.
It is clear from the testimony, however, that a copy of the
quitclaim deed was not introduced, but a copy of a copy of a
quitclaim deed was introduced. (Vol. II RT-48). Section
35-4-27 deals with the proof of the official seal.
All deeds, powers of attorney and other instru-
ments of conveyance, affidavits or contracts pur-
porting to be acknowledged, proved or verified as
prescribed by law, and which have been recorded or
may hereafter be recorded in the office of the judge
of probate of the proper county in this state, and
transcripts thereof from such record shall be prima
facie evidence that the seal of such officer acknowl-
edging or attesting such instrument was his official
seal and that it was affixed by him in his official
capacity; and all such instruments and certified
copies thereof shall have the same force and effect
and shall be received in evidence in any court in this
state without further proof of the due execution of
such instrument or proof of the seal of any officer
so certifying or attesting and that the same was
affixed by him as his official seal, in his official
capacity, whether he be an officer of this state or of
any other state, territory or district of the United
States.
A-7
This section does not deal with the problem in the Land-
ers’ trial. The seal or certification by the probate judge does
not reach the issue of whether a copy of a copy of a deed is
admissible as proof of ownership of land. McElroy’s Alabama
Evidence Section 225.02 states as follows: “If the parties claim
of ownership of land is disputed by an adverse claimant
thereto, oral testimony that the party owns the land, or as to
the contents of deeds and instruments of conveyance to him,
is not admissible with production, or showing an excuse for
non-production, of the original document or duly authenticated
copy of the probate judge’s record thereof if such copy of
obtainable.” (Emphasis added). In this case, no proper predi-
cate had been laid, nor does the copy of a copy meet the
standards of McElroy or Section 35-4-27.
The Court of Criminal Appeals said, “Because the claim of
ownership was not disputed, oral testimony was admissible to
prove that fact.” (Page 5). The claim of ownership, however,
was highly disputed, as can be seen from the transcript and
the Landers’ argument in favor of their Motion for Judg-
ment of Acquittal. (Vol. II RT-236 to RT-247). The Court of
Criminal Appeals also said that, “At trial, both defendants
testified and admitted ownership of the property involved.”
(Page 5). However, only evidence that has been presented at
the time that the Motion for Judgment for Acquittal is made
should be taken into consideration in granting or overruling
the Motion. At the time the Motion for Judgment of Acquit-
tal was made by the Landers, they had not testified to
anything, or admitted ownership of the property. It is 8
therefore, that the introduction of a copy of a copy of <
quitclaim deed is not enough to prove ownership of the ad,
and ownership cannot be used to distinguish the Landers’
case from the facts in Crafts, supra. Because ownership of the
land was not proved, there is no other evidence to distinguish
this case from Crafts, supra, except for the facts that are in the
Landers’ favor.
In Crafts, supra, 521 cultivated marijuana plants were
growing in a field behind the defendant's residence, and
there was evidence that harvesting of the marijuana had
begun. The field of marijuana was located behind the barn,
A-8
approximately 125 to 150 feet from the defendant's back
porch. The marijuana was growing in between five to seven
rows of corn, which were forty to fifty feet long. The Court
stated, “At best, the testimony in this case merely raises a
suspicion that the marijuana belonged to the defendant. No
rule is more fundamental or better settled than that convic-
tions cannot be predicated upon the surmise, speculation
and suspicion to establish the accused’s criminal agency in
the offense charged.” (at 1325). In Crafts, supra, the prox-
imity of the marijuana to the residence was much closer than
in the present case. In this case, marijuana was growing in a
densely wooded area some 580 feet from the house, as
compared to 125 to 150 feet from the house. In Crafts, supra,
the marijuana was also growing in a cultivated garden. In
both cases, the defendants were never seen at or near the
marijuana, nor was anyone home at the time of the seizure.
In Crafts, supra, there was a foot or two between the garden
and the mowed area of the yard, and there was also evidence
that the defendant had been dealing in marijuana. In the
instant case, there are no allegations of the Landers dealing
in marijuana, nor is the proximity between the Landers’
usable portion of their land and the marijuana plants nearly
as close as a foot or two as in Crafts, supra. It is clear that
Crafts, supra, is the controlling case, and that the facts in the
Landers’ case are not even as strong as those in Crafts, supra.
The Landers’ conviction, therefore, should be reversed in
accordance.
“or
The Court of Criminal Appeals in their written opinion
found that the State met all of the elements of constructive
possession. The Court found that the circumstantial evi-
dence presented, when taken together, supplied adequate
proof of the defendants’ guilt. The circumstances presented,
however, fail to adequately prove constructive possession.
“Constructive possession may be determined by weighing
those facts which tend to support the defendant's necessary
control over the substance against those facts which demon-
strate a lack of dominion and control.” German v. State, 429
rere
A-9
So.2d 1138 (Ala.Cr.App. 1983). In this case, the facts sup-
porting the defendants’ lack of dominion and conirol, sub-
stantially outweigh the facts tending to support the defen—
dants’ necessary control. The factors listed on page 7 of the
Court of Criminal Appeals written opinion are simply not
enough to prove constructive possession. The circumstantial
evidence does not exclude every reasonable hypothesis but
that of the defendants’ guilt. The rural, densely wooded
nature of the geographical area involved does not go to show
the defendants’ guilt or innocence. Marijuana is rarely found
to be growing in an open area. The defendants’ ownership of
the land was never proven. The inaccessible nature of the
property was also highly disputed. Mr. Lander testified that
there were at least three other means of access to the
property, and that there were often trespassers on the
property. (Vol. II RI-277 to RT-278, RT-287 to RT-288).
The size, number and location of the marijuana fields in
relation to the Defendants’ residence, if anything, shows that
the Defendants were not involved. The marijuana was in a
swampy, densely wooded area, far away from the Defen-
dants’ residence in an area that they did not use. The size of
the marijuana and the presence of various items, including
the drying shed, only shows that “someone” was growing it,
not necessarily that the Defendants were growing it. The
presence and condition of the paths connecting the mari-
juana fields were highly disputed. Even if the paths are taken
as a fact, their presence should not be used to convict the
Defendants. If the Landers did not know that the marijuana
was there, how were they expected to know that paths
connecting the marijuana were there. It is an unreasonable
burden to expect them to patrol over 40 acres of land and
determine the or#gwiation and cause of paths. The only two
things that can be taken as facts are that a jacket bearing the
name “Don L.”, and a paper bag with “Cam” written on it
were found somewhere. No pictures, maps, notes or other
evidence showing where these two things were found were
put in evidence. Even if they were found on a path or in the
drying shed respectively, that does not prove that the Land-
ers put them there. Both of the defendants testified that
A-10
similar items could be found throughout their property.
(Vol. II RI-274. RT-295 to RT-297). These bags and rain-
coats were kept in their unlocked and accesible storage sheds,
as well as in their back yard. In short, the circumstantial
evidence which was presented is hardly of any incriminating
nature. Raincoats and paper bags have no particular connec-
tion to cultivating marijuana, and are used everyday in the
ordinary course of business. These circumstances do not
exclude every reasonable hypothesis but that of the Landers’
guilt. Many explanations could be given and inferred from
these circumstances. Because the State failed to prove con-
structive possession and the circumstantial evidence pre-
sented by them failed to prove beyond a reasonable doubt
that the Defendants were guilty, the Landers’ conviction ts
due to be reversed.
WHEREFORE, above premises considered, the Petitioners
respectfully pray that the Writ of Certiorari be granted, and
that this Honorable Court proceed under its rules to review
the matters complained of to reverse the judgment of the
Court of Criminal Appeals; that this Court exercise super-
intendent authority over the intermediate Appellate Court to
review the law as applied to the facts pursuant to the Alabama
Rules of Appellate Procedure and to exercise this Court's
responsibility to review the erroneous treatment of the
Petitioners properly raised issues improperly decided by the
intermediate Appeliate Court. The Petitioners pray for such
other relief as to which they may be enttled.
I hereby certify that J have sent copies of this Petition and
the Brief in support thereof as required by Rule 39(e) of the
Alabama Rules of Appellate Procedure this the 14th day of July,
1989.
Respectfully submitted.
David S. Luker
DAVID S. LUKER
ATTORNEY FOR PETITIONERS
2205 Morris Avenue
Birmingham, AL 35203
(205) 251-6666
Oe
A-1]
CERTIFICATE OF SERVICE
— hereby certify that I have served a copy of the above and
foregoing Petition of Certiorari upon the Honorable Don
Siegelman, Aitorney General for the State of Alabama, via
U.S. Mail this the 14th day of July, 1989.
/s/ David S. Luker
DAVID S. LUKER
A-12
RELEASED MAY 26, 1989
THE STATE OF ALABAMA
JUDICIAL DEPARTMENT
[HE ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM. 1988-89
3 Div. 983
Camilia Saliba Lander
and
Donald Boyd Lander
*
State
Appeal from Autauga Circuit Court
BOWEN, JUDGE
Camilia and Donald Lander were convicted for trafficking
in cannabis in violation of Alabama Code 1975, § 20-2-
SOCOM, Mr. Lander was sentenced to fifteen years’ impris-
onment, while Mrs. Lander received a five-year prison
sentence. Each was fined $25,000 and ordered to pay 81500
to the Victims Compensation Fund.
The only question presented on this appeal from those
convictions is the legal sufficiency of the States evidence in
proving the defendants’ possession of the marijuana.
The standard for appellate review of the sufficiency of the
evidence in a conviction based upon circumstantial evidence
is set out in Dahn i, State,, 391 So.2d 133, 137-38 (Ala.
1980). and Cumbo , State, 368 So.2d 871, 874 (Ala.Cr.App.
1978), cent. denied, Ex parte Cumbo, 368 So.2d 877 (Ala.
1979). See also White v. State, (Ms. 4 Div. 966, March 31,
1989), — So.2d — (Ala.Cr.App. 1989). Applying the
standards and legal principles set out in those cases to the
facts presented here, we conclude that the evidence was
legally sufficient to allow the submission of the issue of the
defendants’ guilt or innocence to the jury.
A-13
Viewed in its most favorable light, the State's evidence
shows that, on August 24, 1987, acting on an anonymous tip
which indicated that marijuana was being grown in Perry
County, State Troopers Roy Sumja and Buddy Fletcher
obtained a helicopter from the Department of Public Safety
in order to make an aerial surveillance of the suspected
property. While en route from Montgomery to Perry
County, the officers observed a large patch of marijuana in
Autauga County. Upon making this observation, the troop-
ers abandoned their flight to Perry County and informed
Alabama Bureau of Investigation (ABI) Agent Charles West
of their discovery. Agent West was taken up in the helicopter
and shown the marijuana.
After completing their aerial surveillance of the defen-
dants property, Agent West and a deputy with che Autauga
County Sheriff's Department entered the property to con-
duct a search. The officers proceeded to a residence, but
found no one at home. The officers did not search the
residence but proceeded on the property to the garden. The
garden was located approximately 30 yards behind the
residence. At the rear of the garden, the officers found two
trails leading into the woods. One of these trails led to three
plots of marnjuana. Stephen Lindsey, the Deputy who as-
sisted in the search of the defendants’ property, testified that
the path “was wore down all the way to the dirt” and “was
cleared of limbs at some points.” Upon following this trail,
law enforcement officials discovered the first marijuana plot
approximately 150 yards from the residence and about 30
yards from the garden.
The trail continued through the woods to a second patch
of marijuana. Deputy Lindsey testified that while on the trail
between the first and second marijuana plots he discovered a
jacket with the name “Don L.” sewn on it. The record further
reveals that the trail progressed to a third plot of marijuana
and a plastic enclosed shed. Throughout the testimony, the
witnesses referred to this enclosure as a “drying shed.”
Drying marijuana and other evidence of marijuana cultiva-
tion were seized from this shed. Also found inside the “shed”
were a chain, heaters, butane tanks, lanterns, “manicuring
A-14
racks,” and “plastic bags” containing marijuana plant mate-
rial. A paper bag with Mrs. Landers’ name (“Cam”) written
on it was found in the shed.
After observing the “drying shed” and its contents, Deputy
Lindsey followed a trail which was “basically on a creek” to
the fourth and final marijuana plot.
Upon their search of the 60 acres, the officers seized
numerous marijuana plants and substantial evidence of
marijuana cultivation. The plants were “rather large” and
were 12 to 16 feet tall. No fingerprints were found on any of
the items seized.
The State’s evidence also established that the property
upon which the marijuana was growing was in the exclusive
possession and control of the defendants. The property on
which the marijuana fields were found was located in a rural
and densely wooded area. The State's evidence indicated that
the marijuana field “could be accessed only by a complex of
trails” which terminated at either end of the defendants’
garden. Mr. Lander disputed this evidence, testifying that
there were at least three other means of access to the
property. There was no residence near these fields except
that belonging to the defendants. Records in the county tax
assessor's office indicated that certain property in Autauga
County (with the address Route 4, Box 442B, Prattville) was
assessed to the defendants. Records in the probate office
indicate that a quitclaim deed was issued to the defendants as
jomt tenants in 1983 and there was no record that ownership
of the property had transferred.
Fred David McGee testified that he resided in the “Vida
community, Route 4, Box 442, Prattville,” and he identified
the area on the Autauga County map. He stated that there
were two mailboxes located next to his and that one was
labeled “Joy, Don and Cam.” He identified the defendants,
“Cam and Don,” as being his neighbors. Defense counsel
stipulated that the defendants were his neighbors. Mr.
McGee testified that he had occasionally seen the defendants
and their vehicles on the property.
The defendants contend that their motion for a judgment
of acquittal should have been granted because the State's
— —äf— . — — —
-_—— —
A-15
evidence was insufficient to prove a prima facie case of
constructive possession. In support of this contention, they
cite the case of Crafts v. State, 439 So.2d 1323 (Ala.Cr.App.
1983). We agree with the defendants’ counsel that there are
similarities between the instant case and Crafts. However,
there are distinguishing material differences between the
evidence in Crafts and the evidence in the present case. In
Crafts, we determined that:
While the ownership and exclusive possession
of the property on which the marijuana is found
may warrant a jury in finding that the accused was
growing the illegal plant, Puckett v. State, 13
Md. App. 584, 284 A.2d 252 (1971), the proof in this
case does not rise to that level. Here, the evidence is
notable for its lack of detail and for the absence of
information connecting the defendant with the
growing marijuana.
Although the Sheriff ‘assumed’ that the defen-
dant planted the corn in the garden behind lis
house and yard, the State never attempted to estab-
lish who owned or possessed or had control over the
property on which the marijuana was growing.
Reduced to fundamentals, all the State showed
was that the defendant's residence abutted land on
which marijuana was growing... .
lere the facts and circumstances only give
rise to a suspicion of guilt and are insufficient to
support the conviction. Thomas State, 363 So.2d
1020 (Ala.Cr.App. 1978). Crafts, 439 So.2d at
1324-25.
Here, the State presented sufficient evidence from which
the jury could have reasonably concluded that the defen-
dants owned and were in exclusive possession and control of
the property on which the marijuana was growing. Here, a
copy of the quitclaim deed was properly admitted into
evidence, Lukes v. Alabama Power Co., 257 Ala. 590, 593, 60
So.2d 349 (1952); Ala.Code 1975, § 35-4-27. At trial, both
defendants testified and admitted ownership of the property
involved. Because the claim of ownership was not disputed,
A-16
oral tesumony was admissible to prove that fact. C. Gamble,
McElroy’s Alabama Evidence § 226.02 (3d ed. 1977).
We believe that the evidence produced by the State, when
viewed in a light most favorable to the prosecution, was
sufficient to allow the jury to reasonably conclude that the
evidence excluded every reasonable hypothesis except that
of guilt. We agree with the trial judge in his observation:
“The state's case is hanging by a very, very thin thread. But !
find that there is a thread that enables them to overcome a
mouon for judgment of acquittal.”
“To establish a prima facie case of possession of narcotics,
there must be actual or constructive possession and guilty
knowledge.” Hall v. State, 455 So.2d 94 (Ala.Cr.App. 1984).
“Constructive possession arises only where the illegal sub-
stance is found on premises owned or controlled by the
accused. Williams v. State, 340 So.2d 1144 (Ala.Cr.App.
1976), cert. denied, 340 So.2d 1149 (Ala. 1977).” Grubbs v.
State, 462 So.2d 995, 997 (Ala.Cr.App. 1984). In the instant
case, the State presented evidence showing that the defen-
dants owned and controlled the property where the mari-
juana was found.
In order to establish constructive possession, the State
must prove: (1) actual or potential control; (2) intention to
exercise dominion; and (3) an external manifestation of
intent and control. Eady v. State, 495 So.2d 1161, 1164
(Ala.Cr.App. 1986); Williams v. State, 340 So.2d 1144, 1145
(Ala.Cr.App. 1976), cert. denied, 340 So.2d 1149 (Ala.
1977). “Where constructive possession is relied on the State
must also prove beyond a reasonable doubt that the accused
knew of the presence of the prohibited substance.” Temple v.
State, 366 So.2d 740, 741 (Ala.Cr.App. 1978). “The use of
direct proof to show constructive possession is not necessary;
the elements of such possession may be proven through a
sufficient showing of the surrounding facts and circum-
stances, Franklin u., State, 437 So.2d 609 (Ala.Cr.App. 1983).
and such a showing was made in this case.” Coffin v. State, 449
So.2d 1263, 1264 (Ala.Cr.App. 1984). “Knowledge of the
presence of a controlled substance may be proved by circum-
stantial evidence, see Reed v. State, Ala. Cr: App, 368 So.2d
SS
A-17
326 (1979); Henderson v. State, Ala.Cr.App., 347 So.2d 540,
cert. quashed, Ala., 347 So.2d 543 (1977).” Etheridge v. State,
414 So.2d 157, 163 (Ala.Cr.App. 1982). Additionally, where
illegal substances are found on a premises under the control
of the defendant, an inference may arise that the defendant
had knowledge and possession of such drugs. Moore v. State,
457 So.2d 981, 987 (Ala.Cr.App. 1984), cert. denied, 470
U.S. 1053, 105 S.Ct. 1757, 84 L.Ed.2d 820 (Ala. 1985).
The circumstances present in this case which authorize a
reasonable inference of the defendants’ knowledge and
control of the marijuana are the rural, densely wooded,
nature of the geographical area involved; the defendants’
ownership of the land on which the marijuana was discov-
ered; the relatively inaccessible nature of that property; the
size, number, and location of the four marijuana fields in
relation to the defendants’ residence; the size of the growing
marijuana; the presence of various items, including a “drying
shed,” used in the growing, cultivation, processing, and
distribution of marijuana; the “very well used” and “real
beaten” condition of the foot paths connecting the defen-
dants’ garden and the marijuana fields; and, finally, the
presence and location of a jacket bearing the name “Don L.”
and a paper bag with “Cam” written on it. These circum-
stances, in combination, supplied adequate proof of the
defendants’ guilt.
The trails leading from the defendants’ garden to the
marijuana fields were described as “very well used.” “Ala-
bauma has never been committed to the ‘beaten path” doc-
trine (in location not exclusively under defendant's control),
as a matter of circumstance, which alone can convict without
proof of some act of guilty knowledge.” Parker v. State, 40
Ala.App. 244, 247, 112 So.2d 493, cert. denied, 269 Ala. 699,
112 So.2d 496 (1959); Terry v. State, 44 Ala.App. 356, 359,
208 So.2d 804 (1968). See Mitchell v. State, 18 Ala.App. 119,
120, 89 So. 98 (1921) (“The mere fact that a small distilling
outfit is set up in a wood 150 to 200 yards from defendant's
house, on land not in possession or under the control of
defendant, and that one of the paths leading from the place
went in the direction of the defendant's house, is a circum-
A-18
stance, and to be considered when other circumstances
connect the defendant with the still, but standing alone is not
sufficient to convict.”). Although we recognize that the
defendants’ knowledge of the presence of the marijuana
cannot be inferred solely from the evidence of “beaten
paths,” we conclude that such evidence is a proper consider-
ation, when coupled with other facts and circumstances, in
determining the existence of that knowledge.
Here, as in Boles v. State, 19 Ala.App. 184, 185, 95 So. 909
(1923), the motion for judgment of acquittal was properly
overruled “for the reason there were many incriminating
facts and circumstances.”
“We are of the opinion that, from all this test-
mony, the reasonable and necessary inference was
afforded that the defendant owned or possessed the
contraband articles found upon his premises, and
we do not think that the jury did violence to their
duty or to their conscience in so finding. And we
think that the facts not only warranted the [judge].
but required him, to submit the question of the guilt
or innocence of the accused to the jury, under
proper instructions, which in the instant case, the
record shows, was by the court so submitted.
“As stated by this court in Walker v. State, [19 ~
Ala.App. 20], 95 South. 205:
A charge of this character can be sustained
upon what is known as circumstantial evidence, just
as can any other criminal charge, and it becomes a
question for the determination of the jury.’
“To hold otherwise would result in laying down
the rule that, unless the testimony disclosed that the
accused was caught in the actual commission of the
offense, there could be no conviction. A rule of that
character would open an avenue of absolute safety
to the lawbreaker, and render his conviction impos-
sible by his merely absenting himself from his own
still and its operation.” Boles, 19 Ala.App. at 186.
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
—— 2 4 —
A-19
COURT OF CRIMINAL APPEALS
STATE OF ALABAMA
June 30, 1989
3 Div. 983 AUTAUGA Circuit Court
CC#s CC 88-011 & 012
CAMILIA SALIBA LANDER AND
DONALD BOYD LANDER
Appellants
VS.
State of Alabama
Appellee
Dear Sir:
You are hereby notified that on June 30, 1989, the
following indicated action was taken in the above-styled
cause by the Court of Criminal Appeals of Alabama.
Judgment not final, see Rules 39 and 41. A.R.A.P.
/s/_ Mollie Jordan.
CLERK
COURT OF CRIMINAL
APPEALS OF ALABAMA
A-20
IN THE
COURT OF CRIMINAL APPEALS OF ALABAMA
3 DIV. 983
STATE OF ALABAMA,
Plaintiff/Appellee,
vs.
CAMILIA S. LANDER AND DONALD B. LANDER
Defendant/Appellant
Case No. CC 88-011 / CC 88-012
Appealed from Autauga County Circuit Court
Nineteenth Judicial Circuit of Alabama
BRIEF OF APPELLANT
ORAL ARGUMENT REQUESTED
DAVID S. LUKER
ATTORNEY FOR APPELLANT
2205 Morris Avenue
Birmingham, AL 35203
Phone: (205) 251-6666
A-21
STATEMENT OF THE CASE
The Defendants, Donald B. Lander and Camilia S.
Lander, were arrested on October 20, 1987, and charged
with trafficking marijuana. On August 24 of 1987, officers of
the Alabama Bureau of Investigation received a quantity of
marijuana as a result of aerial observation from property that
was owned by the Defendants. On February 12, 1988, the
Autauga County Grand Jury returned indictments against
Camilia S. Lander and Donald B. Lander for trafficking in
marijuana. They were arraigned on March 8, 1988, and the
case was set for trial on May 10, 1988. The cases were
consolidated for purposes of the trial. Numerous pre-trial
motions were filed by both Defendants, and the case was
tried before a jury in Autauga County on May 10, 11, and 12.
On May 12, 1988, the Autauga County jury returned a
verdict of guilty against both Donald B. Lander and Camilia
S. Lander. The case was continued for pre-sentencing inves-
tigation to the 24th of June 1988, at which time the Honora-
ble Judge John B. Bush sentenced Defendant Donald B.
Lander to fifteen (15) years in the penitentiary, assessed a
$25,000 fine, and order $1500 be paid to the Victim's
Compensation Crime Fund. The Honorable Judge Bush
sentenced Camilia S. Lander to five (5) years in the peniten-
tiary, $25,000 fine, and ordered her to pay $1500 to the
Victim’s Compensation Crime Fund. On the 24th of June,
1988, the Defendants perfected an appeal bond in the above
styled case. Defendants then filed a Motion for a New Trial
on the 24th of June, 1988. On August 9, 1988, the Honora-
ble Judge Bush denied the Defendants motion for a new
trial.
ISSUES PRESENTED FOR REVIEW
i. DID THE TRIAL COURT ERR BY OVERRULING
THE DEFENDANTS MOTION FOR A JUDGMENT OF
ACQUITTAL IN THAT THE STATE FAILED TO
PROVE A PRIMA FACIE CASE?
A-22
STATEMENT OF THE FACTS
On August 24, 1987, at approximately 2:00 p.m., agents
with the Alabama Bureau of Investigation were involved in a
routine flight from Montgomery to Perry County. While
passing over land in Autauga County, they observed what to
them appeared to be marijuana plants. (R-11). As a result of
their observation, marijuana was seized on August 24th, and
a search was executed on August 25th on the residence of
Donald B. and Camilia S. Lander. (O11 to 013). The fruits of
this search were later suppressed by the trial court. (086 to
087). As a result of the observation and seizure from the
field, Donald B. Lander and Camilia S. Lander were arrested
on October 20, 1987. The Defendants were indicted on
February 12, 1988 by the Autauga County Grand Jury (033
to 036). The case was set for trial on May 10, 1988, tried on
May 10, 11, and 12, and on May 12, 1988, the jury returned a
guilty verdict against both Defendants. (190-191). During the
trial of this case, testimony was elicited from ABI pilot, Roy
Sumja, who said he observed marijuana on the ground from
his position in the helicopter. (R-11). Agent Sumja stated that
he did not apprehend or see anyone in the field. (R-18 to
R-19). Alabama Bureau of Investigation Agent Charles West
testified, and during his tesumony he stated that he did not
see either Defendant during his investigation of the field of
marijuana either at home or in the woods. (R-64, R-162).
However, he did tesufy that he had found a paper bag inside
a drying shed in the woods. The bag had the name of the
defendant Camilia S. Lander on it. (R-86). He also testified
that while he was gathering the marijuana plants, he ob-
served a yellow jacket that was dirty and on the ground in a
wet condition that had the name “Don L” on the back. (R-79).
He tesufied that there were trails between the different plots
of marijuana, and what appeared to be a trail in the direction
of the house. (R-68). Agent West testified that he had no
photographs, statements, fingerprints, or other evidence
that would link the Defendants to the marijuana. (R-83 to
R-84, R-123 to R-124, R-228, R-137-R-234).
The Detendant Donald B. Lander took the stand and
testified that he had no knowledge of the marijuana, and that
—
— net
A-23
it was not his. (R-272). Defendant Donald B. Lander also
testified that he had in the past obtained yellow rain slickers
similar to the one that Agent West found, and that hne had
kept them in his yard, and in his storage shed, and that the
one found in the field could have possibly been his. (R-274).
Defendant Camilia S. Lander took the stand and testified
that she had no knowledge of the marijuana field, that it did
not belong to her, (R-298), and that she stored bags from
WalMart and other such paper bags in her house and in her
shed, and that the bag found in the drying shed could
possibly have been hers. (R-295 to R-297). Both Defendants
denied knowledge of the marijuana or any involvement with
it. (R-272 and R-298). At the close of the State’s case, the
Defendants moved for a Motion for Judgment of Acquittal
on the grounds that the State failed to prove a prima facie
case in that they failed to prove the elements of constructive
possession. (R-236 to R-247). The Defendant was sentenced
on June 24, 1988 and gave Notice of Appeal, and filed a
motion tor a new trial. (R-198 to R-201).
ARGUMENT
ISSUE ONE
DID THE TRIAL COURT ERR BY OVERRULING THE
DEFENDANTS MOTION FOR A JUDGMENT OF AC-
OUTTTAL IN THAT THE STATE FAILED TO PROVE A
PRIMA FACIE CASE“
The State failed to prove a prima facie case against the
Defendants. There was no proof of ownership, no proof of
exclusive possession, no fingerprints, no surveillance at the
time of the seizure, nor was anyone ever seen at or near the
marijuana plants. The State did not prove the elements of
constructive possession, therefore, the Defendants were
wrongfully convicted.
Before a person can be convicted of trafficking in can-
nabis, the State must prove beyond a reasonable doubt that
he was in actual or constructive possession of the substance.
In this case, there was no actual possession, so the State must
A-24
have proved constructive possession. The legal definition of
“constructive possession” is “a phrase used in the law to
characterize an act not amounting to an actual appropriation
of property, but which shows an intention to convert it to
one’s own use.” In addition, constructive possession arises
only where the illegal substance is found on the premises
owned or controlled by the accused. Campbell v. State, 439
So.2d 719 (Ala.Cr.App.), rev'd. on other grounds, 439 So.2d
723 (Ala. 1983); Williams v. State, 340 So.2d 1144
(Ala.Cr.App. 1976), cert. denied, 340 So.2d 1149 (Ala.
1977). In the case at bar, the State failed to prove ownership
of the property.
Ownership and possession of land msut be proved by
evidence as other facts are proved and neither can be proved
by general notoriety nor by reputation. M.C. Dixon Lumber
(Co., Inc. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972).
Brown v. State, 7 So.2d 557, 242 Ala. 630 (1942); Gamble,
McElroy’s Alabama Evidence, Section 257.02 (3rd ed. 1977). In
this case, the State tried to prove ownership through the
testimony of a neighbor of the Defendants, Mr. Fred McGee
(R-185 to R-192). Based on Dixon, supra, Mr. McGee's tes-
timony did not prove ownership.
The State also tried to prove ownership by introducing the
tax assessor's records (R-33 to R-46 and R-51 to R-55). Those
too, do not prove ownership, and are inadmissible for such
purposes. McElroy’s Alabama Evidence, supra, states that “a tax
assessor's records is not admissible as tending to show owner-
ship of the property in the person who listed it for taxation.”
McElroy’s, supra, Section 267.04; Wrght v. Merriwether, 51 Ala.
183 (1874). Also see R-96 to R-98.
The State attempted to prove ownership through probate
records of a copy of a quit claim deed issued to the Defen-_
dants (R-46 to R-51). Through the testimony of Ms. Betty
-Ward, a probate clerk, a certified copy of a copy of a quit
claim deed was introduced (R-48) over the objection of the
Defendants. (R-49). The objection was based on no proper
predicate being laid and the Best Evidence Rule, and should
have been sustained. As Hill v. State, 394 So.2d 106
(Ala.Cr.App. 1981), notes “parol evidence is inadmissible to
Wah aac A ie sania ate
A-25
show ttle for ownership of real property, when such owner-
ship is based on title deeds, without first having laid a
predicate for its introduction.” Hill, supra, ating Withers v.
State, 120 Ala. 394, 25 So. 568 (1898). Due to the State’s
failure to prove ownership of the land on which the mari-
juana was growing, the conviction for trafficking should be
reversed.
Even had the State proved ownership, they still failed to
show a prima facie case of constructive possession. There was
no proof of exclusive possession by the Defendants, no
fingerprints (R-123 to R-124, R-149 to R-162, R-228 to
R-234), no surveillance at the time of the discovery, (R-162,
R-166-172), and no one was ever seen at or near the
marijuana (R-18 to R-19, R-167 to R-172, R-207 to R-214).
There was insufficient evidence to meet the standards for
constructive possession. In 1977, the Alabama Court of
Criminal Appeals in Cook State, 341 So.2d 183 (Ala.Cr.App.
1977), citing DeGruy v. State, 56 A. App. 521, 323 So.2d 406,
cert. denied, 295 Ala. 399, 323 So.2d 411 (1975), set forth
the three essential elements necessary for the proof of
possession of controlled substances. The elements are:
1. actual or potential physical control;
2. intention to exercise dominion; and
3. external manifestations of intent and control.
See also, Franklin u. State, 437 So.2d 609 (Ala.Cr.App. 1983);
German v. State, 429 So.2d 1138 (Ala. Cr. App. 1983); Scrafford
v. State, 414 So.2d 179 (Ala.Cr.App. 1982); Crane v. State, 401
So.2d 148 (Ala.Cr.App. 1981); Collins v. State, 391 So.2d
1078 (Ala.Cr.App. 1979); McCord v. State, 373 So.2d 1241
(Ala.Cr.App. 1979); Williams v. State, 340 So.2d 1144
(Ala.Cr.App.), cert. denied, 340 So.2d 1149 (1977); Lee v.
State, 350 So.2d 743 (Ala.Cr.App. 1977). When constructive
possession is relied on, the prosecution must meet a heavy
burden; they must prove beyond a reasonable doubt that the
accused had knowledge of the presence of the controlled
substance. Campbell, supra; Yarbrough v. Staie, 405 So.2d 721
(Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala. 1981);
Grubbs v. State, 462 So.2d 995 (Alu. Cr. App. 1984); White v.
A-26
State, 479 So.2d 1368 (Ala.Cr. App. 1985). Proof of construc-
tive possession alone will not justify a conviction. Cook, supra;
Coker v. State, 25 Ala.App. 191, 143 So.2d 206 (1932). The
fundamental purpose for the knowledge requirement ts
founded on the legal theory that a person is cloaked with a
presumption of innocence until proven guilty, and, conse-
quently, the State, to obtain a conviction, must show that the
evidence excludes all rational conclusions “except that of the
Defendant's guilt.” Temple, 366 So.2d 740 (Ala.Cr.App.
1978).
Knowledge can be inferred from the accused's exclusive
possession, ownership, and control. Temple, supra. There was
testimony that the Defendants had had trespassers on then
property from time to time and that some things had come
up missing from the farrowing shed. (R-277 to R-278 and
R-287 to R-288). That shows that the Delendants did not
have exclusive possession, ownership and control of the
premises. The State did not attempt to prove otherwise.
Temple, supra, goes on to state that when the accused does not
have exclusive possession of the premises where a controlled
substance is found, some other corroborating Grcumstances
must exist before the accused can be convicted of illegal
possession. “Where a person is in possession, but not exclu-
sive possession of the premises, it may not be inferred that he
knew of the presence of any controlled substance found
there unless there are other Grcumstances tending to but-
tress this inference.” Korreckt v. State, 507 So.2d 558
(Ala.Cr.App. 1986); Temple v. State, supra. Some evidence
that connects the accused with the contraband ts required.
Guilty knowledge can be proved by evidence of acts, or
conduct of accused, from which it may be fairly inferred that
he knew of the existence of the contraband at the place
where it was found. Donahoo v. State, 505 So.2d 1067
(Ala.Cr.App. 1986). The only evidence that even remotely
connects the Defendants in this case to the marijuana ts a
dispute over some trails in the densely wooded area where
the plots were found. (R-253 and R-268). The only attempt
the State made to show evidence of trails was through the
testimony of an ABI Agent. Charles West and ex-agent,
A-27
Stephen Lindsay. The trails they testified to were in an
admittedly rural, marshy, densely-wooded area, where a
machete was necessary to cut through the growth. (R-31 to
R-32, R-68, R-102 to R-105, R-156 to R-159, R-197, R-204).
There were also many animals in the woods. (R-156 to
R-159). There was not, however, any pictures, notes, dia-
grams or contemporarneous records to show the location or
existence of the “trails.” (R-83 to R-85, R-159 to R-161). This
testimony was insufficient to show Constructive possession or
knowledge.
There was a raincoat and a paper bag that could have
belong to the Defendants found near the scene of the
seivure. Both of which were like numerous similar items used
in and around the Defendants home and farrowing shed.
(R-274 to R-276, R-286 to R-287, R-297 to R-295). The State
attempted to show knowledge through these two items, Once
again, however, there was a notable lack of detail and
accuracy surrounding the items. Although numerous pic-
tures were taken at the scene of the seizure and introduced as
evidence, no pictures, notes, drawings or contemporancous
records were made regarding the two key pieces of evidence
which could have linked the Defendants to the marijuana.
(R-S3 to R-S4, R-113 to R-118, R-121, R-128 to R-130, R-138
to R-141, R-143 to R-156, R-160 to R-161). In fact, the ABI
agents detaced, altered and commingled the paper bags and
wrote prejudicial remarks on them. (R-87, R-89 to R-90).
Despite the numerous objections of Defendants counsel,
these items were allowed into evidence. (R-84, R-87, R-90,
R-112, R-121).
The State tailed in every aspect to prove a prima facie case
of constructive possession. The case at bar is similar to
Woolridge v. State, 489 So.2d 703 (Ala.Cr.App. 1986); and
Crafts v. State, A399 So.2d 1323 (Ala-Cr. App. 1983). In Wool-
ridge, supra, several trails led from the defendant's trailer to
woods where manjuana was discovered growing. Seeds were
found in an oil can near the edge of the field about 75 yards
from the trailer. There were also some scales and pills found
inside the trailer. No one was ever found at the trailer or
near the plot. The Court of Criminal Appeals held that there
A-28
was insufficient evidence to establish that the defendant was
in constructive possession of the contraband. The instant
case does not even rise to the level of Woolridge, supra. The
“trails” are disputed and there was no clear evidence that
they existed. The marijuana was much further away from
the house (R-67 to R-258) (two hundred yards as compared
to seventy-five) and in a densely-wooded area, and the only
evidence even remotely linking is the raincoat and paper bag.
In Crafts, supra, the Court of Criminal Appeals again held
that evidence was insufficient to convict the defendant. The
local sheriff had been informed that the defendant was
dealing in marijuana. A marijuana field was discovered in an
acrial survey behind a barn, approximately 125-150 feet
from the defendant's back porch. The defendant was not at
home at the time of the seizure and was never seen at or ea
the marijuana. The marijuana was growing in between com
plants in the garden, and several plants were drying at the
edge of the woods, twenty to fifty feet behind the garden.
The Court said that “the evidence is notable for its lack of
detail and tor the absence of information conriecating the
detendam with the growing manjyuana.” Crafts, supra, at p.
1324. “Reduced to fundamentals, all the State showed was
that the defendant's residence abutted land on which
marijuana was growing.” Crafts, supra, at p. 1325.
Here, there was no showing that the marijuana
plants were growing on the defendant's exclusively
owned and occupied residential lot... There was
no showing that the defendant owned and was in
exclusive possession of the property on which the
marijuana was growing. ... At best, the testimony in
this case merely rawes a suspicion that the marijuana
belonged to the defendant... . No rule is more funda-
mental or better settled than ‘that convictions cannot be
predicted upon surmise, speculation, and suspicion to
establish the accused’s criminal agency in the offense
charged. ... Here the fact that the marijuana plants
were inc lose proximity to the defendant's residence
and the Shenff's testimony that he had been told
that the defendant had been dealing in marijuana
merely showed a possilility that this defendant may have
r
A-29
committed the offense. “However, the possibility that a thing may
occur is not alone evidence even circumstantially, that the thing did
. Here, the facts and circumstances only give
rise to a suspicion of guilt and are insufficient] to support the
conviction. Crafts, supra, at p. 1325 (emphasis added).
Finally, the Court held that “although the evidence may have
been sufficient to show potential control, there was no
showing of the defendant's intention o exercise dominion
and external mapifestation of intent and control.” Crafts,
supra, at p. 1325.
In light of the standards set forth in Crafts, supra, the
Defendants in our case are due a reversal of the trial court's
decision. The proximity of the marijuana to the residence
was much closer in Crafts, supra, than in the instant case. In
Crafts, supra, the marijuana was in a relatively open area
growing ina cultivated garden behind the barn, some 125 to
150 feet from the house. In this case, the marijuana was
growing in a densely-wooded area some 580 feet from the
house. Like Crafts, supra, the Defendants were never seen at
or near the marijuana (R-18 to R-19, R-162, R-207 to R-214).
In addition, no one was at home at the time of the seizure
(R-64). The Defendants’ conviction was based on specula-
tion, suspicion and surmise, which, as noted above, is insuffi-
dient to support a conviction.
The Detendants were convicted on circumstantial evi-
dence. A conviction may be had on circumstantial evidence so
long as that evidence is so strong and cogent as to show the
defendant's guilt to a moral certainty. Tanner v. State, 277 So.2d
885 (Ala. 1973) (emphasis added); Hollenquest v. State, 290
Ala. 146, 274 So.2d 613 1973); James v. State, 22 Ala.App.
183. 113 So. 648 (1927). If circumstantial evidence fairly
permits an inference consistent with innocence, it will not
support a conviction. Tanner, supra; Carr v. State, 28 Ala.App.
466, 187 So. 252 (1939); Cooper v. State, 235 Ala. 523, 180 So.
102 (1938). In Tanner, supra, there were three pieces of
circumstantial evidence: 1) the defendant was at the scene of
the crime at the time a car was stolen, 2) his prior statement
that he was going to “get” an automobile, and 3) his later
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appearance at a friend’s house with a car of the same
description as the stolen automobile. The Alabama Supreme
Court held that these three things were sufficient to convict
the defendant. In our case, however, the Defendants did not
have circumstantial evidence as strong as in Tanner, supra.
The Defendants were never seen at or near the scene of the
crime, (R-18 to R-19, R-162, R-207 to R-214) there were no
“statements” which tended to show guilt, nor were the
Defendants ever seen with the marijuana. (R-18 to R-19,
R-162, R-207 to R-214).
The humane provisions of the law are, that a
prisoner, charged with a felony, should not be
convicted on circumstantial evidence, unless it
shows by a full measure of proof that the defendant
is guilty. Such proof is always insufficient, unless it
excludes, to a moral certainty, every other reason-
able hypothesis, but that of the guilt of the accused.
No matter how strong the circumstances, if they can
be reconcile with the theory that some other person
may have done the act, then the defendant is not
shown to be guilty, by that full measure of proof
which the law requires. . .. Ex parte Acree, 63 Ala.
234 (1897), and quoted in Weeks v. Ste, 428 So.2d
193 (Ala.Crim.App. 1983); Cumbo v. State, 368 So.2d
871 (Ala.Cr.App. 1979); Ex parte Williams, 468 So.2d
99 (Ala. 1985).
In Ex parte Williams, supra, the Alabama Supreme Court
held that the evidence was imsufficient to exclude every
reasonable hypothesis, except that of the defendant's guilt, in
the absence of any evidence placing the defendant at or neat
the store on the night of the burglary. The defendant's
fingerprints were found on boxes of stolen film in an area of
a store where the customers were not allowed. In the case at
bar, the evidence does not even rise to that level. No
fingerprints were found at all (R-123 to R-124, R-149 to
R-151, R-228, R-234). Williams, supra, went on to hold that
mere speculation, conjecture, or surmise that the accused is
guilty of the offense does not support a conviction. Smith v.
State, 345 So.2d 325 (Ala.Crim.App. 1976), cert. quashed,
345 So.2d 329 (Ala. 1977); Colley v. State, 41 Ala.App. 273,
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128 So.2d 525 (1961). “Mere possibility, suspicion, or guess-
work, no matter how strong, will not overturn the presump-
tion of innocence.” Ex parte Williams, supra, at p. 101; Sauls v.
State, 29 Ala.App. 587, 199 So. 254 (1940); Riley v. State, 28
Ala.App. 389, 187 So. 247 (1938); Rungan v. State, 25
Ala.App. 287, 145 So. 171 (1932); Guin v. State, 19 Ala. App.
67, 94 So. 788 (1922). In the instant case, the Defendants
were convicted on speculation, suspicion and surmise. Other
than the raincoat and paper bag, there was no evidence to
connect the Defendants with the marijuana. Both of these
items are innocent and do not tend to support guilt. Rain-
coats and paper bays have no particular connection to
cultivating marijuana, and are items used by people everyday
in the ordinary course of business. They are not incriminat-
ing items special to the marijuana trade.
No pictures were taken of the location of the two key
pieces of circumstantial evidence (R-137 to R-141). Evidence
was burned and destroyed (R-108, R163 to R-166, R-219 to
R-220), altered, commingled and detaced (R-86 to R-87,
R-89 to R-90, R-III to R-122 and R-145). No surveillance
was done at the time of the seizure (R-162, R-166 to R-172),
nor was any one ever seen at or near the marijuana either at
the time of the seizure (R-18 to R-19, R-162) or at the time ot
the late night surveillance (R-207 to R-214). No measure-
ments or diagrams of the scene of the seizure or of the
distance between the plots themselves and the plots and the
house were done (R-181 to R-183, and R-210 to R-214). In
fact, the agents did not even know how many plants they
seized out of each plot (R-129).
In German w. State, supra, the Court stated: “Constructive
possession may be determined by weighing those facts which
tend to support the defendant's necessary control over the
substance against those facts which demonstrate a lack of
dominion and control.” at p. 1140, citing Roberts v. State, 349
So.2d at 91 (Ala.Cr.App.), cert. denied, Ex parte Roberts, 349
So.2d 94 (Ala. 1977). In this case, the facts supporting the
Defendants lack of dominion and control substantially out-
weigh the facts tending to support the Defendants necessary
control,
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The State simply failed in all aspects to prove constructive
possession. There was no proof of: I. actual or potential
physical control; 2. intention to exercise dominion; and
3. external manifestations of intent and control, nor was
there proof beyond a reasonable doubt that the Defendants
had knowledge of the marijuana. Because the evidence
presented by the State could not support a rational inference
by the jury that the Defendants had knowledge of the
contraband, the State failed to prove beyond a reasonable
doubt that the Defendants had constructive possession of the
marijuana. For the foregoing reasons, the Defendants con-
viction is due to be reversed.
ADVERSE RULINGS IO THE APPELLANT
1. R-49 Overruled Defendants’ objection to
improper predicate of evidence.
2. R-53 Overruled Defendants’ objection to
evidence.
3. R-65 Overruled Defendants’ objection to
relevant evidence.
4. R-84 Overruled Defendants’ objection to
improper predicate.
5. R-90 Overruled Defendants’ objection to
relevancy.
6. R-112-122 Overruled Defendants’ objection to
proper predicate.
7. R-235-247 Overruled Detendants’ Motion for Judg-
ment for Acquittal based on State’s failure
to prove a Prima Facie Case.
8. R-303 Overruled Defendants’ Motion for Judg-
ment of Acquittal.
9. R-309 Overruled Defendants’ objection to
improper to jury arguments.
ee
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REQUEST FOR ORAL ARGUMENT
The appellant requests oral argument in this cause as it is a
matter of utmost importance to the people of this State.
CONCLUSION
For the foregoing reasons, Appellant respectfully de-
mands that this Honorable Court reverse the lower court's
conviction of the Appellants and remand for consideration
in accordance with these arguments.
David S. Luker
DAVID S. LUKER
ATTORNEY FOR APPELLANTS
Donald B. Lander/
Camilia S. Lander
CERTIFICATE OF SERVICE
| hereby certify that I have served a copy of the foregoing
Brief of Appellant upon the Attorney General, Don Siegel-
man, for the State of Alabama, via United States Mail,
postage prepaid and properly affixed, on the Ist day of
December, 1988.
/s/ David S. Luker
DAVID S. LUKER
ATTORNEY FOR APPELLANTS
2205 Morris Avenue
~ Birmingham, AL 35203
(205) 251-666
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.