Petition for Writ of Certiorari — Long v. Alabama

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

RICHARD PATRICK LONG, Petitioner,

STATE OF ALABAMA, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

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PETITION FOR WRIT OF CERTIORARI

ae aa eee ee eee ee ee ee eS ee ee ee

THOMAS MARTELE GOGGANS

P O Box 1367

Montgomery AL 3618]

(205) -834-2511

Counsel for Petitioner

Richard Patrick Long

"aN

QUESTION PRESENTED

Whether the opinion below and the plurality

opinion in Hampton v,. United States, 425 U.S.

484 (1976) improperly expand United States y,

Russel], 411 U.S. 423 (1973) to exclude from

application of the fundamental fairness

defense predisposed defendants and defendants

who have suffered no independent

constitutional deprivation.

TABLE OF CONTENTS

Table of Authorities. @eeeseeoeee*e#*7#2e#e#es#e?e8eeeee @ iii

Citations to Opinions Below....ccccccccceel

POE EME SOE TOM s 0 6 66 0664660066646 b0 SO ee

Constitutional Provisions and

Statutes InvOlVEd .cecccecevcscescssececsecse

Statement of the COGO cs ccneneeeeneeueveseee

Reasons for Granting the Writ.....eeeeeeel7

The opinion below and the

plurality opinion in Hampton vy.

United States, 425 U.S. 484

(1976) improperly expand United

States v. Russel], 411 U.S. 423

(1973) to exclude predisposed

defendants and defendants who

have suffered no independent

constitutional deprivation from

application of the fundamental

Fairness defenSe...cccccccccccccccccceldd

CONS TUS LOR c 000066006 b0h 648866

iii

TABLE OF AUTHORITIES

425 U.S. 484 (1976) ....eeeeeee-18, 19, 28

United States v. Russell,

425 U.S. 423 (1976) eeeee ivieheeaeeseeeaae

No. 92-

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1992

RICHARD PATRICK LONG,

Petitioner,

Vv.

STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

Petitioner, Richard Patrick Long,

respectfully prays that a writ of certiorari

issue to review the judgment of the Supreme

Court of Alabama in this case.

OPINIONS BELOW

The unreported decision of the Supreme

Court of Alabama denying Petitioner's petition

for a writ of certiorari to the Alabama Court

of Criminal Appeals was entered on March 19,

1993. (Appendix A). The unreported opinion

of the Alabama Court of Criminal Appeals was

entered on November 18, 1992. (Appendix B).

The Alabama Court of Criminal Appeals

overruled Petitioner's application for

rehearing on January 22, 1993. (Appendix C).

JURISDICT “N

Final judgment in this matter was entered

on March 19, 1993. This Court's jurisdiction

is invoked under 28 U.S.C. 1257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

This case involves:

The Fifth Amendment to the United States

Constitution which provides in pertinent part:

"No person shall be ... deprived of life,

liberty or property, without due process of

law...”

The Fourteenth Amendment to the United

States Constitution which provides in

pertinent part: "No state shall .. deprive

any person of life, liberty or property

without due process of law."

Section 13A-12-231, Code of Alabama, which

provides in pertinent part:

"Except as authorized in chapter 2,

title 20: ...

"(1) Any person who knowingly sells,

manufactures, delivers, or brings into

this state, or who is knowingly in actual

or constructive possession of one kilo or

2.2 pounds of cannabis is guilty of a

felony, which shall be known as

‘trafficking in cannabis.‘ If the

quantity of cannabis involved:

“a. Is in excess of one kilo

or 2.2 pounds, but less than 168 pounds,

such person shall be sentenced to a

mandatory minimum term of imprisonment of

three calendar years and to pay a fine of

$25,000.00. ...

"b. Is 168 pounds or more, but

less than 588 pounds, such person shall

be sentenced to a mandatory minimum term

of imprisonment of five calendar years

and to pay a fine of $50,060.00. ...

"(2) Any person who knowingly

sells, manufactures, delivers, or brings

into this state, or who is knowingly in

actual or constructive possession of 28

grams or more of cocaine or of any

mixture containing cocaine, described in

section 20-2-25(1), is guilty of a

felony, which shall be known as

‘trafficking in cocaine.’ If the

quantity of involved:

"a. Is 28 grams or more, but

less than 508 grams, such person shall be

sentenced to a mandatory minimum term of

imprisonment of three calendar years and

to pay a fine of $50,000.08...."

————

Section 36-25-5, Code of Alabama which

provides in pertinent part:

"(a) No public official or employee

shall use an official position to obtain

direct personal financial gain for

himself, his family, or any business with

which he or a member of his family is

associated unless such use or gain are

specifically authorized by law...."

Section 36-25-27, Code of Alabama which

provides in pertinent part:

(a)(1) Any person subject to this

chapter who knowingly or willfully

violates any provisions of this chapter

other than the requirements of financial

and lobbying disclosure shall be found

guilty of a felony and shall be fined not

more than $18,808.98 or less than

$2,981.89, or shall be imprisoned for not

more than 18 years but not less than two

years or any combination thereof...."

STATEMENT OF THE CASE

Petitioner Richard Patrick Long convicted

in the Circuit Court of Montgomery County,

Alabama for trafficking in marijuana, in

violation of Section 13A-12-231(1)(a) & (b),

trafficking in cocaine, in violation of

Section 13A-12-231(2) (a), and using his public

office for personal gain, in violation of

Section 36-25-5, Code of Alabama. On November

21, 1991, Long was sentenced to 1@ years'

imprisonment in each of the marijuana and

cocaine cases and to 5 years' imprisonment in

the ethics case.

The trial record indicates the following:

Montgomery, Alabama police officer Richard

Patrick Long and and his wife, Lynn Long, had

been married only a few years. (RT 569). They

had two young children. The medical expenses

in connection with the birth of their first

child had not been covered by insurance.

After their second child was born, Lynn Long

guit her employment outside the home because

the child care expenses were offsetting her

employment income. (RT 571). They rented a

town house after they got married but had

trouble paying the rent. They later moved

into a house owned by her parents and stayed

there until her father decided to sell the

house and gave them only 38 days to move.

Their car had been damaged in a collision with

an uninsured motorist. Their only other

vehicle wan an undependable truck. During

this time period, Richard and Lynn Long

discussed his retiring from the Montgomery

police department, withdrawing his retirement,

and making a down payment on a house. Long

worked a number of part time jobs and

volunteered for extra detail with the police

department. (RT 575-578, RT 612). It is

against his backdrop, that the stage in this

case was set.

Lester Shane Stokes was twenty-four years

old and was suspected, if not known, by agents

of the Alabama Department of Public Safety

(D.P.S.), to have been involved with drug

activities. (RT 473). D.P.S. agent T.L.

Coleman arranged for Stokes to be debriefed by

the United States Drug Enforcement Agency

(D.E.A.) during February of 1991 about cocaine

business in Montgomery. (RT 96, 97).

Stokes denied ever dealing drugs and

Claimed the last time he used drugs was

October, 1989. However, two witnesses related

that Stokes had tried to get them involved in

distributing cocaine in 1998. (RT 536-537,

727-729).

Stokes did admit to using drugs beginning

with the period following his senior year in

high school and regularly for several years

following that. (RT 29-131). Stokes had been

acquaintances with Richard Long since junior

high school. Stokes said he learned Long was

a police officer in 1988. (RT 28). Stokes

claimed that about two to two and a half years

before, he and Long had shared cocaine at a

party. Furthermore, according to Stokes, Long

had expressed an interest in working in the

drug business. Stokes said he did not follow

up because Long's employment as a police

officer made him leery. (RT 146-148). Long

denied this. (RT 666).

Stokes did not see Long again until April

18, 1991, when he saw Long at a Montgomery

bank where Stokes did business and where Long

worked as a part-time job as a security guard.

(RT 148, 680-6801). Stokes said Long told him

he needed some money and referenced their

previous conversation. Stokes said they

exchanged beeper numbers and that he left.

Long testified that when he saw Stokes come

into the bank, he spoke to him and engaged in

some small talk with him. Long said Stokes

then motioned him outside and asked him how

much he made at the bank. Long said he told

Stokes he made $48.88 for four hours work and

that Stokes told him he could make $588.08 per

week working for him. Long said he asked what

he meant and that Stokes gave him his beeper

number and told him to give him a call the

following Monday evening. (RT 604).

Stokes notified Coleman, (RT 154, 155), and

the following Monday evening, April 22, 1991,

met with Coleman and D.P.S. agent Cliff McLeod

at Coleman's residence. McLeod directed

Stokes to set up a meeting with Long. (RT

440-441). They determined that the proposal

would be for Long to provide protection for

transportation of drugs. (RT 442). During

this meeting, Stokes received the page from

Long per his previous instructions. (RT 122-

123). Coleman activated a recorder on the

telephone and Stokes returned Long's page.

There was no specific mention of drugs in the

conversation. (RT 114). Long denied any

agreement to carry out a drug deal during the

telephone conference.

The next day, Stokes, after conferring with

his handlers, met Long at a local bank. (RT

158, 159, RT 648-658). Stokes and Long rode

around in Stokes' car. According to Stokes

they discussed Long's assisting in a drug

operation by riding shotgun on trips and, if

stopped by law enforcement officials, flashing

his badge “to take the heat off." (RT 168).

According to Stokes, Long was to be paid

$258.00 for this service. (RT 159, 1686).

Long said that Stokes told him he had wanted

him to ride with a friend who had been getting

traffic tickets and flash his badge if his

friend were stopped for a traffic violation.

According to Long, Stokes told him that this

friend had problems getting insurance and

could not afford to get any more tickets.

Long said Stokes told him he would be paid

$258.08 for such a service. (RT 646). Stokes

reported the meeting to Officer McLeod the

next day.

Thereafter, Stokes engaged Long in a number

of telephone calls, most of which were

recorded.

In two preliminary telephone conferences,

Long specifically mentioned his need for

money. Stokes said that on May 6, 1991, Long

contacted him at home about his need for

money. (This telephone conference was not

recorded but Stokes said he briefed McLeod

about it.) (RT 165). In a May 7, 1991 phone

conference, Long told Stokes of his need of

money to put down on a house because of he was

having to move and of his consideration of

quitting the police department for the purpose

of drawing his retirement and re-applying for

employment with the police department later.

(RT 610-616).

On the morning of May 8, 1991, Stokes

contacted Long and directed him to meet them

at a local bank. (RT 652, 653). Long again

mentioned his need for money. (RT 254, 256).

Stokes met with Long and D.P.S. undercover

agent Norman Willingham at the bank.

Willingham was introduced to Long as "Larry."

Stokes gave Willingham an envelope supposedly

containing money for the purchase of marijuana

in Mobile. Stokes paid Long with money given

to him by McLeod for the trip and instructed

Long to call him upon his return from Mobile.

(RT 293, 294, 312). Long said that there was

not any talk about drug activity at the bank.

(RT 607). On the way to Mobile, Willingham

engaged Long in a conversation about the drug

business and the money to be made in the drug

business. (RT 318, 311). Long testified that

he was told they were going to get marijuana

after they were already on the road. Long

said he did not realize that and was shocked

and afraid for his life. (RT 614-616, 656).

In Mobile, Willingham stopped in the parking

lot of an unmarked DEA building and met with

Mobile County Deputy Sheriff John Pigot, who

posed as a drug courier. Willingham spoke to

Pigot at the rear of the car. Pigot got the

envelope from Willingham and transferred a

bail of marijuana obtained from DEA inventory

to the trunk of Willingham's car. (RT 295,

296, 487-418). Long stayed in the car during

this exchange. (RT 298). Long said that

after Willingham got back into the car, he

told him he had got forty pounds of marijuana.

Long said that on the way back to Montgomery,

Willingham told him about a desire for more

investors and led him to believe that getting

into the drug business could solve his

financial problems. (RT 618-621, 668). Once

back in Montgomery, Willingham dropped Long

off at the bank and told him they could do it

again. (RT 3868, 315).

On May 17, 1991, Stokes contacted Long by

telephone to let him know where to meet for a

second drug transport trip. Willingham, after

conferring with McLeod, went to the bank to

pick up Long. Duffel bags full of exposed

marijuana were already in the vehicle for the

purpose of making Long touch and handle the

contraband. (RT 301, 302, 328). Willingham

instructed Long to place the marijuana back in

the duffel bags. (RT 378). As on the

previous trip to Mobile, the drop off point

was an unmarked DEA office building. When

they arrived, Long got out and helped transfer

one of the duffle bags of marijuana to a Car

driven by D.P.S. undercover agent William

Batson. Batson paid Long $258.88. (RT 323-

325, 415-419). Upon return to Montgomery,

1 McLeod had instructed Batson to

pay Long because Stokes had not shown up

for a pre-trip meeting. (RT 452-455).

Long was dropped off at the bank. (RT 329).

On May 38, 1991, Stokes and Long conferred

by telephone about a third drug transport

trip. Willingham met Long at the bank. (RT

238-333). On the way to Birminghan,

Willingham told Long the man they were to meet

in Birmingham could sell any drugs Long could

provide. (RT 334, 335). Willingham also told

Long that he was vacationing in Key West the

next week and would be calling Long to see if

he were interested in moving more drugs. (RT

336). Long said that Stokes and Willingham

tried to get him to involve another police

officer. Long said he did not want to do that

and put them off. (RT 624-625). In

Birmingham, they went to the same unmarked DEA

office building. This time D.P.S. undercover

agent Guy Warren acted as the drug courier.

Willingham opened the trunk of his car and

showed a bag of cocaine to Warren. Warren

took the bag of cocaine and put it in the

front seat of his car. At Willingham's

request, Long got out of the car and helped

transfer a Guffle bag of marijuana to Warren's

car. (RT 337, 338). Warren transferred the

other duffle bag of marijuana to the trunk of

his car. Warren and Willingham discussed

future transport of cocaine. (RT 422-426).

On the return trip, Willingham again told Long

he needed additional investors, (RT 624-626),

and Long told Willingham he intended to cease

his involvement with drug trafficking. Upon

returning to Montgomery, Willingham again let

Long out at the bank.

About a week later, Willingham at the

instruction of McLeod, called Long from the

Florida Keys. Willingham asked Long if he had

been successful in locating anybody interested

in purchasing more drugs. (RT 343, 344, 389,

396).

During this time period when Stokes was

working as informant for law enforcement he

was being paid expense money. He denied being

paid money for information given, but the

——————————

compensation represented lost time from work

and school. He was also paid $258.88 for each

trip he facilitated. (RT 258-252). To the

best of his knowledge, Stokes was probably

paid $1,500.00. (RT 186).

On appeal, Petitioner argued that the law

enforcement officials’ conduct was so

outrageous as a matter of law to amount to a

denial of due process. In affirming, the

Alabama Court of Criminal Appeals did

recognize the fundamental fairness defense.

The Court of Criminal Appeals said of this

Court's decisions in Russel], 411 U.S. 423

(1973) and Hampton v. United Staes, 425 U.S.

484 (1976): “[W]hile the United States Supreme

Court has neither endorsed nor completely

foreclosed such a defense, see United States

ve. Russel], 411 U.S. 423, 432 (1976); Hampton

ve United States, 425 U.S. 484 (1976), that

Court has chosen to base its decisions on

entrapment instead. See Russel]." It based

its rejection of Petitioner's fundamental

fairness argument upon a finding of

predisposition stating:

"The appellant has simply not shown that

the conduct of law enforcement officers

in the instant case was ‘fundamentally

unfair’ or ‘shocking to the universal

sense of conscience.’ The evidence

supports a finding that the appellant

repeatedly solicited drug courier work

from Shane Stokes. The law enforcement

authorities involved merely provided the

vehicle by which he could commit the

offense that he had indicated he was

predisposed to commit."

The Alabama Court of Criminal Appeals

overruled Petitioner's timely filed

applicaiton for rehearing. The Supreme Court

of Alabama denied Petitioner's timely filed

petition for a writ of certiorari.

REASONS FOR GRANTING THE WRIT

A fundamental fairness defense separate and

distinct from an entrapment defense was

recognized by this Court in United States vy.

Russel], 411 U.S. 423, 431 (1973). In

Russell], this Court though refusing relief on

such a Claim in the case before it, stated:

"While we may some day be presented

with s situation in which the conduct of

law enforcement agents is so outrageous

that due process principles would

absolutely bar the government from

invoking judicial process to obtain a

conviction, ... the instant case is

distinctly not of that breed. ...The law

enforcement conduct here stops far short

of violating that ‘fundamental fairness,

shocking to the universal sense of

justice,’ mandated by the Due Process

Clause of the Fifth Amendment."

411 U.S. at 431-432. The majority noted in

its opinion “the difficulties attending the

notion that due process of law can be embodied

in fixed rules." Russel], 411 U.S. at 431.

The fundamental fairness defense was again

before this Court in Hampton v. United States,

425 U.S. 484 (1976). In Hampton, this Court

again rejected a fundamental fairness defense

argument. A three member plurality concluded:

"[In Russell] we ruled out the

possibility that the defense of

entrapment could ever be based upon

governmental misconduct in a case, such

as this one, where the predisposition of

the defendant to commit the crime was

established.

"The remedy of the criminal defendant

with respect to acts of Government

agents, which, far from being resisted,

are encouraged by him, lies solely in the

defense of entrapment.”

Hampton, 425 U.S. at 498, 491 (plurality

opinion). The plurality went on to state:

"The limitations of the Due Process Clause of

the Fifth Amendment come into play only when

the Government activity violates some

protected right of the defendant.” Hampton,

425 U.S. at 498 (plurality opinion).

In a separate opinion concurring in the

judgment, Justice Powell, joined by Justice

Blackmun, described the plurality opinion as

having enunciated a per ge rule, stating: “The

plurality thus says that the concept of

fundamental fairness inherent in the guarantee

of due process would never prevent the

conviction of a predisposed defendant,

regardless of police behavior in light of the

surrounding circumstances." Hampton, 425 U.S.

at 492 (Powell, J., concurring). Justice

Powell opined that Russel] had not reached as

far as portrayed in the plurality opinion.

Hampton, 425 U.S. at 492-495 (Powell, J.,

concurring). He concluded:

"I am therefore unwilling to join the

plurality in concluding that, no matter

what the circumstances, neither due

process principles nor our supervisory

power could support a bar to conviction

in any case in which the Government is

able to prove disposition."

Hampton, 425 U.S. at 495 (Powell, J.,

concurring).

Here, the Alabama Court of Criminal Appeals

did recognize the fundamental fairness

defense. The Court of Criminal Appeals said

of this Court's decisions in Russel] and

Hampton: "[W)]hile the United States Supreme

Court has neither endorsed nor completely

foreclosed such a defense, see United States

ve Russel], 425 U.S. 423, 432 (1976); Hampton

ve. United States, 425 U.S. 484 (1976), that

Court has chosen to base its decisions on

entrapment instead. See Russel]." It clearly

based its rejection of Petitioner's

fundamental fairness argument upon a finding

of predisposition stating:

"The appellant has simply not shown that

the conduct of law enforcement officers

in the instant case was "fundamentally

unfair’ or ‘shocking to the universal

sense of conscience.' The evidence

supports a finding that the appellant

repeatedly solicited drug courier work

from Shane Stokes. The law enforcement

authorities involved merely provided the

vehicle by which he could commit the

offense that he had indicated he was

predisposed to commit."

This rationale appears to be in line with

the portion of the plurality opinion in

Hampton to the effect that a predisposed

defendant may not avail himself of the

fundamental fairness defense. Petitioner

submits that the majority opinion in Russell

is not so restricted as to bar application of

the defense "in any case in which the

Government is able to prove disposition."

Hampton, 425 U.S. at 492 (Powell, J.,

concurring) .7 Petitioner submits that

placement of such a restriction on the defense

ignores the recognized "difficulties attending

the notion that due process of law can be

embodied in fixed rules." Russell, 411 U.S.

at 431. Here, the placement of such a

restriction upon the analysis of Petitioner's

fundamental fairness claim did not comport

with the majority opinion in Russell.

Analysis of his claim without such a

restriction would lead to a conclusion that

the conduct of law enforcement agents in this

case was so outrageous that due process

principles barred his convictions.

This Court should grant certiorari to

resolve the confusion, if not conflict,

arising from the differences between the

majority opinion in Russel] and the plurality

2 Petitioner likewise submits that

Russel] did not reach so far as to limit

application of the fundamental fairness

defense to situations involving some

independent “protected right of the

defendant."

opinion in Hampton.

CONCLUSION

For the foregoing reasons, Petitioner

Richard Patrick Long requests this Court to

grant his Petition for Writ of certiorari to

the Supreme Court of Alabama.

?-F# FH) ~ Salata a

THOMAS MARTELE GOGGANS

P.O. Box 13867

Montgomery AL 36161

(285)-834-2511

Attorney for Petitioner

Richard Patrick Long

Appendix A

IN THE SUPREME COURT OF ALABAMA

March 19, 1993

1928668

Ex parte Richard Patrick Long. PETITION FOR

WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS (In re: Richard Patrick Long v.

State) (91-371) (Montgomery: CC-91-1582 thru

1586)

CERTIFICATE OF JUDGMENT

Writ Denied

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.

MADDOX, J. - HORNSBY, CJ., SHORES, HOUSTON,

& KENNEDY, JJ., CONCUR.

Appendix B

ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1992-93

CR-91-371

Richard Patrick Long

State

Appeal from Montgomery Circuit Court

(CC-91-1582 through -1586)

PATTERSON, PRESIDING JUDGE

The appellant, Richard Patrick Lona, was

convicted after a jury trial of trafficking in

marijuana (CC-91-1582, -1583, and -1585), in

violation of [Section] 13A-12-231(1)(a) «& (b),

trafficking in cocaine (CC-91-1586), in

violation of [Section] 13A-12-231(2) (a), and

using his public office for personal gain (CC-

91-1584), in violation of [Section] 36-25-5,

Code of Alabama 1975. He was sentenced to 19

years’ imprisonment in each of the marijuana

and cocaine trafficking cases and to 5 years’

imprisonment in the ethics case, with all

sentences to run concurrently. He raises six

issues on appeal.

The appellant argues that the trial court

erred by ruling that he failed to prove a

prima facie case of discrimination pursuant to

Batson v. Kentucky, 476 U.S. 79 (1986), and by

not requiring the state to provide reasons for

its strikes. The record reflects that the

venire was composed of 23 whites and 9 black

venirepersons. The state exercised 5 of its

ten strikes to remove blacks. The jury was

composed of 9 whites and 3 blacks. One white

and one black served as alternates. Thus,

blacks represented 28% of the venirepersons

and 25% of the jurors.

The appellant contends that the standard of

review for a Batson claim is whether the trial

court abused it discretion. He is incorrect -

- the proper standard of review is whether the

trial court's ruling was Clearly erroneous.

Ex parte Branch, 526 So.2d 689, 625-26 (Ala.

1987). The appellant argues that because the

state removed 55.5% of the blacks and only

21.7% of the whites from the venire, he proved

a prima facie case of discrimination. This

contention is without merit because the

percentage of venirepersons Struck will

usually be lower when the State exercises

Strikes against the majority race of the

venirepersons than against the minority race

of the venirepersons. Batson simply does not

dictate that the state exercise its strikes of

venirepersons in percentages based on the

percentage of the venire of venirepersons of a

particular race. The appellant also contends

that the state did not engage in any

meaningful voir dire. However, he did not

make this argument at trial; therefore, we

will not consider the issue on appeal. Rika

Ye State, 587 So.2d 1054 (Ala. Cr. App. 1991).

The Alabama Supreme Court has held: "When

the evidence shows only blacks were struck and

that a greater percentage of blacks sat on the

jury than on the lawfully established venire,

an inference of discrimination has not been

created." Harrell] _v. State, 571 So. 2d 12786,

1271 (Ala. 1998), cert. denied, 111 S.Ct. 1641

(1991). This holding may be logically

extended in cases such as this one, in which

the percentage of blacks on the venire and on

the jury is only slightly different -- in this

case, only 3%. The racial composition of the

jury roughly mirrored the racial composition

of the venire; therefore, we cannot say that

the trail court's ruling was clearly

erroneous.

The appellant argues that the trial court

abused its discretion by admitting evidence of

his alleged past use of cocaine. The state

offered, over objection, testimony of Shane

Stokes, the informant in this case, to the

effort [sic] that the appellant used cocaine

with him on an occasion two and one-half years

before the instant offenses. The trial court

ruled that the evidence was admissible as

evidence of a Predisposition to commit the

offense to rebut the appellant's defense of

entrapment,

As a general rule, evidence of collateral

offenses is inadmissible. c, Gamble,

McElroy's Alabama Evidence [Section]

68.81(1) (4th ed. 1991). This rule, however,

is subject to exceptions. See McElroy's

[Sections] 69.81(2)-(14). "[I]f£ there is a

Close question of whether [a] prior Crime

falls into one of these exceptions, then

admissibility is, to some extent, within the

discretion of the trial court." Id. at

[Section] 68.82(1) (footnote omitted).

As previously noted, the appellant offered

the defense of entrapment.

"Special pleas and defenses are available

which, when asserted by the accused,

Place all or a limited portion of his

Character in issue. The materiality of

his character permits the prosecution to

introduce any other criminal acts which

are relevant to prove it. A major

illustration of this principle is found

in criminal prosecutions where the

accused invokes the defense of

entrapment. The use of such a defense

has been held to place in issue the

defendant's predisposition to commit the

charged crime. This permits the

prosecution to offer prior crimes by the

accused to rebut such a special defense.

By having pleaded the defense of

entrapment, the accused has been held to

have placed in issue his predisposition,

or lack thereof, to commit the crime and

evidence of collateral crimes is

admissible to rebut such a defense and to

illustrate, at the time of the commission

of the offense, the accused's intent."

Id. at [Section] 69.81(13) (footnotes omitted).

This exception may be used to admit evidence

of other instances of the unlawful

distribution of illegal drugs when a

defendant pleads entrapment in an unlawful

distribution or trafficking case. See, @.g9,,

Brown vy. State, 392 So. 2d 1248 ( Ala. Cr.

App. 1980), writ denied, 392 So.2d 1266 (Ala.

1991). However, we find no Alabama cases in

which evidence of alleged drug yge has been

admitted to rebut a defense of entrapment in a

prosecution for trafficking.

The North Carolina Court of Appeals, in

State v. Goldman, 97 N.C, App. 589, 389 S.E.2d

281 (199), review denied, 327 n.c. 434, 395

S.E.2d 691 (1998), held that evidence of an

appellant's previous cocaine and lysergic acid

diethylamide (LSD) use was admissible in a

Prosecution for "possessing [LSD] and cocaine

with intent to sell and deliver, selling and

delivering LSD ana cocaine and trafficking

LSD." 97 N.C. App. at 591; 389 S.F.2d at

282. In reaching its decision, the Goldman

court stated the following:

"G.S. sec 8C-1, Rule 404(b) provides that

evidence of other wrongs is admissible to

Prove the absence of entrapment. We view

personal use of drugs as not being

Synonymous with the intent to sell,

find no error with the trial court's

97 N.C. App. at 595; 389 S.E.2d at 284.

1 The Goldman court also allowed

testimony regarding the appellant's drug

marijuana yse to establish

the lack of entrapment. See Goldman, 97

N.C. App. at 593; 389 S.E.24 at 283.

Compare N.C. Gen. Stat. [Section] 88C-1, Rule

484(b) (1986) with McE]roy's at [Section]

69.81(1)-(13).* We £ind Goldman applicable to

the instant case and hold that testimony

regarding the appellant's alleged previous

cocaine use admissible to show his

predisposition to commit the offense of

trafficking marijuana and cocaine.

The appellant also argues that the alleged

previous cocaine use was too remote from the

instant offenses to be admissible. The

determination of whether a collateral offense

is too remote is a matter within the trial

2 N.C. Gen. Stat [Section] 8C-l,

Rule 404(b) (1986) reads as follows:

"Evidence of other crimes,

wrongs, Or acts is not

admissible to prove the

Character of a person in order

to show he acted in conformity

therewith. It may, however, be

admissible for other purposes,

such as proof of motive,

opportunity, intent,

preparation, plan, knowledge,

identity or absence or

mistakes, entrapment or

accident." (Emphasis added.)

court's discretion. McElroy's at [Section]

69.82(6). We conclude that two and one-half

years is not too remote; therefore, the trial

court did not abuse its discretion by

admitting evidence of the appellant's alleged

Prior cocaine use.

III

The appellant argues that the trial court

erred by limiting his Cross-examination of

Shane Stokes concerning threats allegedly made

by the appellant against him. At trial, on

redirect examination of Shane Stokes, the

following occurred:

"Q [Prosecutor] You were asked

questions -- First of all, about this

execution stuff that they asked you

about, did you ever tell anybody or

mention anything about somebody talking

to you about somebody being executed?

"A [Stokes] I told T.L, Payne

[investigator] when he started bringing

up the name of my fiancee that I did not

appreciate it because my uncle, who was a

deputy sheriff, and lived in South

Florida and is now residing in

Mississippi, had told me what happens

many times to the family and to people

who inform themselves; and I've already

received mail threats in this case from

1@b

Mr. Long's friends.

"MR. HAWTHORNE [Defense

counsel]: Your Honor, I'm

going to object and move to

exclude that. There is

absolutely no evidence as to

that. I am going to ask for a

mistrial.

"MR.GRADDICK [Prosecutor]: He

brought it up.

"THE COURT: Overruled."

On recross-examination, the appellant sought

the names of those who allegedly threatened

Stokes. He then sought the identity of the

person who had relayed the information to

Stokes that threats had been made. The state

objected and contended that this informant

should remain anonymous because the district

attorney's office was conducting an ongoing

investigation. The trial court allowed the

appellant to ask who had threatened Stokes,

but not who had relayed the information

concerning the threats to him, and repeatedly

refused to allow the appellant to cross-

examine Stokes regarding the informant's

llb

identity.

"It is well recognized that the

Prosecution has the Privilege to withhola

the identification or Production of

persons who furnish information to law

enforcement officers. See

e 353 U.S. 53 ... (1957.

See generally ’

893 F.2d 1512, 1525 (7th Cir.), cert,

denied, ___—su.s. awe 416 8.Ct. 2623 ...

(1998). However, this privilege is not

absolute. ‘Where the disclosure of an

informer's identification, or of the

contents of his communication, is

accused, or is essential to a fair

determination of a Cause, the privilege

must give way.' Roviaro, 353 U.S. at 69-

61 ... (emphasis added {in Berry)." ...

"While the prosecution's privilege

to withhold an informant's identity may

be defeated, 'the burden is on the

defendant to demonstrate the need for the

disclosure, ' , 780

F.2d 1434, 1439 (9th Cir, 1986), quoted

in » 531 So.2d 57, 59

(Ala. Cr. App. 1988).

Berry v. State, 581 So.2d 1269, 1273 (Ala. Ce.

App. 1991). Furthermore, the scope of cross-

examination, whether on matters relevant or

irrelevant, rests with the trial court and its

exercise of its discretion will not be

disturbed absent "extreme cases of abuse,"

Beavers v. State, 565 So.2d 688, 689 (Ala. Cr.

12b

App. 19986).

The appellant contends that the allegation

of threats by him were prejudicial and that

the trial court's limiting his cross-

examination impeded his ability to test

Stokes's veracity regarding this information,

and that therefore, he should have been

allowed to elicit the name of the informant.

This issue, however, is without merit. First,

the appellant did not adequately demonstrate

the need for determining the informant's

identity. The appellant testified, and he

could have refuted Stokes's testimony that he

had threatened him, but he did not.

Furthermore, Stokes identified the other

individuals who allegedly threatened him, both

of whom were present at trial and one of whom

testified. The appellant could have had both

these individuals testify and refute Stokes's

statement or he could have possibly determined

through these witnesses who the informant was.

Second, the threats were, at best, a

13b

peripheral issue, and the trial court did not

abuse its discretion by disallowing the

evidence. Thus this issue is without merit.

The appellant argues that the trial court

erred by denying his motion for a judgment of

acquittal and motion for new trial because the

State failed to prove a prima facie case of

trafficking in marijuana and trafficking in

cocaine. At trial, the state's evidence

tended to show the following facts: The

State's informant, Shane Stokes knew the

appellant in high school. Stokes had seen the

appellant at a party some two and one-half

years before the offenses alleged in the

instant case and shared some cocaine with him.

At the time, the appellant offered to be a

"mule" or drug courier for Stokes. Stokes

told the appellant that he did not need a

"mule." Stokes knew that the appellant was an

officer with the Montgomery Police Department.

He later saw the appellant at a bank, where he

14b

was apparently working another job as a

security guard in addition to working as a

police officer. The appellant indicated to

Stokes that he needed to make some money very

quickly and asked if he knew how he could.

They exchanged telephone numbers. Stokes

subsequently did not call the appellant; the

appellant called Stokes. Stokes subsequently

contacted that Alabama Department of Public

Safety with this information and a "reverse"

sting operation was planned.

On May 8, 1991, Norman Willingham, a

narcotics agent with the Alabama Department of

Public Safety, met the appellant at aa bank in

Montgomery. Shane Stokes handed some money to

Willingham to purchase marijuana in Mobile.

The appellant got in Willingham‘s car and they

left for Mobile. On the way to Mobile, the

appellant asked what they were going to pick

up. Willingham told him that they were going

to pick up marijuana. In Mobile, they met

John Pigot, an agent with the United States

15b

Drug Enforcement Agency (DEA). Willingham

gave Pigot the money that Stokes had given him

and put a bale of marijuana in the trunk of

his car. On the return trip to Montgomery,

the appellant asked how much marijuana they

had purchased, and Willingham replied that it

was forty pounds. The appellant was paid $259

for this trip.

On May 17, 1991, Willingham met the

appellant at the same bank. On this trip,

they were taking approximately 188 pounds of

marijuana to Birmingham. Willingham

intentionally left some of the marijuana in

view in the hatchback of the car so the

appellant would see it. The appelient told

Willingham that he saw some marijuana bricks

Sticking out of the duffel bags. Willingham

told the appellant to conceal the marijuana

better, and he complied. On the trip to

Birmingham, the appellant made a statement to

the effect that if they were caught in

possession of marijuana, he could be

16b

imprisoned for 28 years. In Birmingham, they

delivered the marijuana into Batson's car.

The appellant was paid $258 for his

participation and they returned to Montgomery.

On May 36, 1991, Willingham again met the

appellant at a bank. On this trip to

Birmingham, they were to deliver 1498 pounds of

marijuana and 1 pound of cocaine. Again they

delivered the drugs to Birmingham, and the

appellant loaded them into another vehicle.

They returned to Montgomery. The appellant

was paid $588 for this trip.

In each case, the evidence showed that the

appellant knew the purpose of the trip. The

evidence also shows that the appellant either

handled or saw the drugs each time and was

aware of the quantity. According to the

State's witnesses, the appellant never

indicated that he no longer wanted to

participate in these drug deliveries.

When reviewing the denial of a motion for

judgment of acquittal, we view the evidence in

17b

a light most favorable to the State. See

Colvette v. State, 568 So.24 319, 321 (Ala.

Cr. App. 1998). At trial, the state was

attempting to prove that the weeree had

constructive possession of the marijuana and

the cocaine.

"To establish possession, the State must

prove: 1) actual or potential control, 2)

intention to exercise dominion, and 3)

and external manifestation of intent and

control. Eady vy. State, 495 So.24 1161

(Ala. Cr. App. 1986). "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.'

, 366 So.2d 749, 741 (Ala.

Cr. App. 1978).*"

Germany vy. State, 6808 So.2a 428, 429 (Ala. Cr.

App.), cert. denied, 686 So.2d 432 (Ala.

1992).

""[T)he kinds of Circumstances which may

provide a connection between a defendant

and [illegal drugs] are unlimited and

will naturally depend on the facts of

each particular case.' fT ’

366 So.2d 748, 743 (Ala. Cr. App. 1978).

Similarly, a defendant's knowledge of the

presence of illegal drugs can be proved

by circumstantial evidence, Self vy,

State, 564 So.2d 1823, 1627 (Ala.Cr. App.

1989), cert. quashed, 564 So.2d 1935

(Ala. 19998), which may include ‘evidence

18b

of acts, or conduct of the 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 [16867,] 18070 [(Ala.

Cr. App. 1986).] (citations omitted)."

Pettaway v. State, [Ms. 91-318, July 24, 1992)

So.2d