Rel 04/04/2008
Notice: This opinion is subject to formal revision before publication in the advance
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-1451
_________________________
Corey Lee Williams
v.
State of Alabama
Appeal from Lee Circuit Court
(CC-06-254)
WELCH, Judge.
Corey Lee Williams was convicted of assault in the second
degree for injuries he inflicted upon a police officer during
the course of the officer's duties, a violation of § 13A-6-
CR-06-1451
21(a)(4), Ala. Code 1975.
Williams was sentenced
to
ten
show
the
years' imprisonment and was fined $2,000.
The
evidence
following.
adduced
at
trial
tended
to
On the afternoon of March 11, 2006, Opelika police
officers Gary Jernigan and James Daniel separately responded
to a report of possible drug activity at the corner of South
4th Street and Bankston Alley in Opelika.
Neither officer saw
anyone at the corner, so Officer Jernigan told Officer Daniel
they
needed
to
drive
down
Bankston
Alley
to
investigate.
Officer Daniel's car was ahead of Officer Jernigan's car as
they drove down the street, which was described as a one-way
dead-end street about 100 yards long at most.
The houses
along the street have little room between them.
The officers saw two men outside of a house about halfway
down Bankston Alley.
The officers stopped their patrol cars
and approached the two men.
know who the men were.
Flakes and Tyrone Flakes.
At the time, the officers did not
They were later identified as Clint
Officer Jernigan asked Tyrone "what
he was doing there" (R. 136) and explained that the police
were investigating a report of drug activity in the area.
2
CR-06-1451
Clint
began
loudly
complaining
and
cursing.
Officer
Jernigan said he asked Clint to calm down, but Clint became
belligerent and "giving [him] that stare.
(R. 190.)
A real mean stare."
The Flakeses refused to show the officers their
identification.
Clint finally admitted there was a warrant
pending for his arrest and said, "Come get me, motherfuckers."
(R. 192.)
At that point, Officer Jernigan told Clint he was
arresting him for disorderly conduct, and Clint turned and ran
inside the house.
Officer Jernigan and Officer Daniel followed Clint into
the house, with Officer Jernigan in the lead.
the
kitchen.
As
Officer
Jernigan
entered
Clint ran into
the
kitchen,
somebody hit him from the right, knocking him to the floor and
knocking off his glasses.
Officer Jernigan said he lost
consciousness for a brief time.
Officer Daniel sprayed Officer Jernigan's assailant with
Freeze Plus P brand mace and then began to fight with him.
Officer
Daniel
assailant.
could
not
identify
Officer
Jernigan's
While Officer Daniel was fighting with that
person, however, someone knocked the mace from his hands and
3
CR-06-1451
he was hit on the head from behind.
Officer Daniel said he
was assaulted by three people.
Officer Jernigan came to on the ground to someone kicking
him in the face.
He testified that four black males were
involved in the assault on him and Officer Daniel, but he
could not identify any of them except Clint Flakes.
Officer
Jernigan was able to get on his hands and knees and spray mace
on the person on top of him and the two that were on top of
Officer Daniel.
Officer Daniel grabbed one of his assailants
around the leg and was able to pull of his shoe before the
assailant fled.
house.
Neither officer sprayed mace again at the
Medical records show that Officer Jernigan suffered a
broken nose in the assault.
The people involved in the assaults of the officers fled
the house.
Some suspects who were known to the officers were
identified from a patrol car videotape showing the assailants
as they fled the house.
identified.
One suspect seen on the tape was not
One of the officers' patrol cars was blocking a
car at the house.
An investigation showed that the car
belonged to Williams.
4
CR-06-1451
Officer Jernigan testified that the Freeze Plus P mace
had a range of seven to 10 feet as it left the can.
Martin
Cash, a distributor of Freeze Plus P mace, testified that when
the mace is sprayed, it does not disseminate like an aerosol,
but
shoots
in
a
straight
stream.
The
mace
contains
a
fluorescent substance that glows under ultraviolet light, or
a black light. The substance becomes embedded in the skin and
is difficult to wash off.
The substance, invisible to the
naked eye, can be detected by black light up to 72 hours.
The
substance is intended to allow police to identify people who
have been sprayed with mace when they are placed under a black
light.
On the morning of March 13, 2006, less than 48 hours
after the assault had taken place, the suspects whom police
had identified and Williams came to the police station for
questioning.1
Williams was advised of his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), and he made a
statement in which he never admitted striking either Officer
Jernigan or Officer Daniel. He refused to sign the statement.
1
It is unclear from the record whether the suspects were
brought in by police or whether they came voluntarily.
5
CR-06-1451
After making the statement, Williams was asked to go to
another office.
He went with several police officers to a
windowless room with ordinary lighting.
In that office, an
ultraviolet light and a digital camera were mounted on a
tripod.
The
ordinary lighting was turned
ultraviolet light was turned on.
off, and
the
The officer could see on
Williams's skin a fluorescent pattern consistent with that of
someone who had been directly sprayed with Freeze Plus P, and
not from a possible hit from mace sprayed over a large area.
The officer photographed the fluorescent pattern.
After
Williams was photographed, he was allowed to leave the police
station.
He was arrested and charged with the assault four
days later.
I.
Williams contends that the trial court improperly denied
his motion to suppress the photograph taken under ultraviolet
light at the Opelika police station.
Specifically, Williams
argues that the photograph taken of him showing a fluorescent
pattern constituted an illegal search.
The
suppression
hearing
on
the
issue
whether
the
photographs of Williams taken under ultraviolet light was due
6
CR-06-1451
to be suppressed was held outside the presence of the jury;
therefore, we would ordinarily review the evidentiary findings
of the trial court under the ore tenus standard.
Jackson, 886 So. 2d 155, 159 (Ala. 2004).
Ex parte
However, here, the
evidence adduced at the suppression hearing regarding how the
photographs came to be taken and the manner in which they were
taken was undisputed.
"'"Where the evidence before the trial
court was undisputed the ore tenus rule is inapplicable, and
[this Court] will sit in judgment on the evidence de novo,
indulging
no
presumption
in
favor
of
application of the law to those facts."'"
the
trial
court's
Jackson, 886 So. 2d
at 159, quoting State v. Hill, 690 So. 2d 1201, 1203 (Ala.
1996), quoting in turn Stiles v. Brown, 380 So. 2d 792, 794
(Ala. 1980).
"Generally, photographs are admissible into
evidence in a criminal prosecution 'if they tend to
prove or disprove some disputed or material issue,
to illustrate or elucidate some other relevant fact
or evidence, or to corroborate or disprove some
other evidence offered or to be offered, and their
admission is within the sound discretion of the
trial judge.' Magwood v. State, 494 So. 2d 124, 141
(Ala. Crim. App. 1985), aff'd, 494 So. 2d 154 (Ala.
1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93
L.Ed. 2d 599 (1986). See also Woods v. State, 460
So. 2d 291 (Ala. Crim. App. 1984); Washington v.
State, 415 So. 2d 1175 (Ala. Crim. App. 1982); C.
7
CR-06-1451
Gamble, McElroy's Alabama Evidence § 207.01(2) (3d
ed. 1977)."
Bankhead v. State, 585 So. 2d 97, 109 (Ala. Crim. App. 1989),
aff'd in relevant part, 585 So. 2d 112 (Ala. 1991), rev'd on
other grounds, 625 So. 2d 1146 (Ala. 1993).
Alabama's appellate courts have not addressed this issue.
In the past, this court has held that, "[i]n the context of
the Fourth Amendment, 'a "search" implies probing into secret
places for that which is hidden [and] implies force, actual or
constructive, or a forceable dispossession of property of one
by exploratory acts.'
Cunningham v. State, 52 Ala. App. 440,
293 So. 2d 865 (1974); Knox v. State, 50 Ala. App. 494, 280
So. 2d 200 (1973)."
Crim. App. 1980).
Vogel v. State, 426 So. 2d 863, 872 (Ala.
Additionally, this court has held that
"in general, the mere observation of a person's
physical characteristics does not constitute a
Fourth Amendment search. See Nguyen v. State, 547
So. 2d 582, 585 (Ala. Crim. App. 1988). '"Moreover,
it is no search to 'record' those characteristics,
in effect, by taking a picture of the individual."'
Nguyen v. State, 547 So. 2d at 585, quoting LaFave,
Search and Seizure, § 2.6(a) (1987)."
Powell v. State, 796 So. 2d 404, 428-29 (Ala. Crim. App.
1999).
8
CR-06-1451
As Professor Wayne LaFave points out, courts across the
United States have struggled with the issue of whether use of
an ultraviolet light to reveal whether a suspect has come in
contact with a certain object or has been in a certain place
constitutes a "search." 1 Wayne R. LaFave, Search and Seizure
§ 2.2(d) (4th. ed. 2004). Of the relatively few jurisdictions
that have addressed the issue, the majority have found that it
does not.
The United States Supreme Court has not addressed
the issue.
Professor LaFave cites Commonwealth v. DeWitt, 314 A.2d
27 (1973), as illustrative of those cases in which courts have
determined that use of an ultraviolet light in such instances
does not constitute a search.
In that case, customs agents
found hashish hidden in a table with a false top, which had
been shipped into the United States from overseas. The agents
treated the hashish with fluorescent grease, repackaged it,
and allowed it to be delivered.
Agents then went to the
address where the delivery had been made to execute a warrant
for the hashish.
While there, they passed an ultraviolet
light over the hands of the defendants and learned that they
had handled the hashish.
Just as in the instant case, the
9
CR-06-1451
defendants
claimed
that
use
constituted an illegal search.
of
the
ultraviolet
light
The Pennsylvania Superior
Court disagreed and wrote as follows:
"[D]efendants had no reasonable expectation of
privacy as to the presence of foreign matter on
their hands independent of the expectation of the
privacy
of
their
premises,
which
had
been
legitimately invaded by the police. The grease may
be compared to a physical characteristic, such as a
fingerprint or one's voice, which is 'constantly
exposed to the public.' United States v. Dionisio,
410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed. 2d 67 (1973).
The Fourth Amendment provides no protection for what
'a person knowingly exposes to the public.' Katz v.
United States, [389 U.S. 347] at 351 [(1967)]....
It is true that the grease could not be detected
with the naked eye, but then, neither may a
fingerprint be examined until there has been an
application of ink.
Furthermore, the examination
was both limited and controlled, affording no
opportunity to learn any information other than that
specifically sought: Have the person's hands been in
contact with the treated contraband?
In this
respect, the examination was more circumscribed than
any
eavesdropping,
electronic
surveillance,
long-distance viewing with binoculars, or even the
use of a flashlight. Also, it involved no personal
indignities or physical discomfort, and was neither
annoying, frightening, or humiliating.
Terry v.
Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed. 2d 889
(1968).
"In these circumstances the use of the
ultraviolet light to examine defendants' hands did
not amount to a search.
It may well be that in
other circumstances an examination by ultraviolet
light would amount to a search."
10
CR-06-1451
DeWitt, 314 A.2d at 30-31.
See also United States v.
Ukomadu, 236 F.3d 333, 338 (6th Cir. 2001) (citing with
approval United States v. Richardson, 388 F.2d 842, 845 (6th
Cir. 1968) (holding "[w]e do not regard the examination of
appellant's hands under the ultraviolet light as a search
within the meaning of the Fourth Amendment")); United States
v.
Williams,
902
F.2d
678,
680-81
(8th
Cir.
1990)
(an
ultraviolet light examination does not constitute a search for
purposes
of
the
Fourth
Amendment);
Williams
v.
City
of
Lancaster, 639 F.Supp. 377, 682 (E.D. Pa. 1986); and United
States v. DeMarsh, 360 F.Supp. 132, 137 (E.D. Wis. 1973).
Other courts, on the other hand, have found use of an
ultraviolet light on a defendant's body to be a search.
Professor LaFave uses United States v. Kenaan, 496 F.2d 181
(1st Cir. 1974), as an example of the reasoning courts have
used to reach that conclusion.
similar to those in DeWitt.
The facts in Kenaan are
In Kenaan, the United States
Court of Appeals for the First Circuit explained its holding
as follows:
"Appellant contends that the results of the
inspection of his hands should have been suppressed
at trial, since the inspection was, in effect, a
personal search unauthorized by the warrant to
11
CR-06-1451
search the premises. There can be little doubt that
an inspection of one's hands, under an ultraviolet
lamp, is the kind of governmental intrusion into
one's private domain that is protected by the Fourth
Amendment.
Mancusi v. DeForte, 392 U.S. 364, 88
S.Ct. 2120, 20 L.Ed. 2d 1154 (1968); Warden v.
Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed. 2d 782
(1967).
If the reach of the Fourth Amendment
extends to finger-printing, Davis v. Mississippi,
394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed. 2d 676 (1969),
and a search of one's clothing or personal effects,
United States v. Micheli, 487 F.2d 429 (1st Cir.
1973), it should certainly encompass a detailed
inspection, by special instrument, of one's skin."
Kenaan, 496 F.2d at 182.
See also People v. Santistevan, 715
P.2d 792, 794-95 (Colo. 1986); and State v. Hardaway, 36 P.3d
900 (Mont. 2001) (overruling State v. Holzapfel, 748 P.2d 953
(Mont. 1988) (viewing defendant's hands under an ultraviolet
light
was
defendant's
not
a
hands
search)
for
in
blood
determining
evidence
that
without
swabbing
a
warrant
constituted an unlawful search)).
We
question
the
assertion
in
Kenaan
that
taking
a
fingerprint constitutes a search: this court has held that
taking the fingerprints of a person who is not under arrest
does not constitute a search under the Fourth Amendment.
Nguyen v. State, 547 So. 2d 582, 585 (Ala. Crim. App. 1988).
In Nguyen, police fingerprinted and photographed a man,
Thanh Ba Tiet, and three others at the police station, where
12
CR-06-1451
the men were attempting to secure a friend's release from
jail. A policeman testified that he took the fingerprints and
photographs because he had learned that a previous robbery he
was investigating had been perpetrated by Vietnamese.
Thanh
Ba Tiet and the others with him were not under arrest, and
Thanh Ba Tiet said that he did not give his consent to be
fingerprinted and photographed. This court held that even
though he was not under arrest, taking his fingerprints and
photograph "did not constitute an unconstitutional search"
because
the
action
merely
"recorded"
constantly exposed to the public.
characteristics
Nguyen, 547 So. 2d at 585.
Under settled Alabama law, a "search" involves probing
into secret places for that which is hidden, and implies a
forcible dispossession of property of one by exploratory acts.
In this case, police merely had Williams enter a room.
When
the room was darkened and an ultraviolet light was turned on,
a fluorescent pattern appeared on Williams's face.
Williams
was not asked to bare any part of his body that was not
already open to public view.
Police did not have to touch his
body in an attempt to discover whether a fluorescent pattern
would
emerge.
It
involved
13
no
personal
indignities
or
CR-06-1451
humiliations.
We fail to see that having one's photograph
made while under an ultraviolet light is any more or less
intrusive than having a photograph taken under any other
circumstances.
See, e.g., Nguyen.
Therefore, we hold that
law enforcement's use of ultraviolet light, without more, to
determine whether a
suspect has
come in contact
with a
fluorescent substance does not constitute a search.
We recognize that in Davis v. Mississippi, 394 U.S. 721
(1969),
the
United
States
Supreme
Court
found
that
fingerprints taken during the brief detention of the suspect
at the police station were subject to exclusion from evidence
because the prints were taken while the suspect was being
improperly detained without probable cause.
In Davis, the
suspect was one of at least 24 black youths who, as part of a
dragnet, were brought in to the Meridian, Mississippi, police
station without probable cause or a warrant, driven to a
distant city, and held overnight so that law-enforcement
officials
could
get
fingerprints
for
use
in
their
investigation of a rape.
As pointed out above, in this case, it is not clear from
the record how Williams arrived at the police station the day
14
CR-06-1451
he was exposed to the ultraviolet light.
There is no evidence
as to whether he voluntarily came to the police station, or
whether police brought him in to the station for questioning.
We do note, however, that after his photograph was taken,
Williams was allowed to leave.
Furthermore, in this case,
unlike the situation in Davis, police already had evidence
that Williams's car was parked outside the house where the
altercation occurred.
Therefore, they already had grounds
independent of the fluorescent marks to reasonably suspect
that Williams may have been involved in the assault on the
police.
Moreover, Williams does not argue that he was either
illegally detained or under arrest at the time he was exposed
to the ultraviolet light.
Therefore, based upon the record
before us, we cannot say that the photograph taken of Williams
under exposure to ultraviolet light was the fruit of an
illegal detention.
Accordingly, the trial court correctly denied Williams's
motion to suppress the photographic evidence at issue.
II.
15
CR-06-1451
Williams
contends
that
the
State
failed
to
present
sufficient evidence to convict him of assault in the second
degree.
"'"In reviewing the sufficiency of the evidence in
criminal cases, we are to view the evidence and all
inferences that may reasonably be drawn from it in
a light most favorable to the government....
Whether evidence is direct or circumstantial, we
must accept all credibility choices that tend to
support the jury's verdict....
The standard of
review is whether a reasonably minded jury must
necessarily have entertained a reasonable doubt of
the defendant's guilt.
If the jury could not
reasonably have concluded that the evidence excluded
every reasonable hypothesis but that of guilt, then
we must reverse the convictions."
"'United States v. Hinds, 662 F.2d 362, 366 (5th
Cir. 1981), cert. denied, 455 U.S. 1022, 102 S.Ct.
1720, 72 L.Ed. 2d 140 (1982).
Hamilton v. State, 680 So. 2d 987, 994-95 (Ala. Crim. App.
1996).
"Where a defendant's conviction is based solely
on circumstantial evidence, 'if the circumstances
can be reconciled with the theory that someone else
may have done the act, then the conviction is due to
be reversed.' Ex parte Brown, 499 So. 2d 787, 788
(Ala. 1986) (emphasis in original). 'Circumstantial
evidence alone is enough to support a guilty verdict
of the most heinous crime, provided the jury
believes beyond a reasonable doubt that the accused
is guilty.' White v. State, 294 Ala. 265, 272, 314
So. 2d 857, cert. denied, 423 U.S. 951, 96 S.Ct.
373, 46 L.Ed. 2d 288 (1975). 'Circumstantial
evidence is in nowise considered inferior evidence
and is entitled to the same weight as direct
16
CR-06-1451
evidence provided it points to the guilt of the
accused.' Cochran v. State, 500 So. 2d 1161, 1177
(Ala. Crim. App. 1984), affirmed in pertinent part,
reversed in part on other grounds, Ex parte Cochran,
500 So. 2d 1179 (Ala. 1985). 'It is not necessary
for a conviction that the defendant be proved guilty
to
the
"exclusion
of
every
possibility
of
innocence."' Burks v. State, 117 Ala. 148, 23 So.
530 (1898).
'The facts and circumstances in
evidence, if dissevered and disconnected, may be
weak and inconclusive; but their probative force,
when combined, as it was the province of the jury to
combine them, under proper instructions from the
court, may have satisfied them of the guilt of the
defendant.' Howard v. State, 108 Ala. 571, 18 So.
813, 815 (1895)."
White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).
Section
13A-6-21(a),
Ala.
Code
1975,
provides,
in
pertinent part:
"A person commits the crime of assault in the second
degree if the person does any of the following:
"....
"(4) With intent to prevent a peace
officer, as defined in Section 36-21-60,
... from performing a lawful duty he or she
intends to cause physical injury or he or
she causes physical injury to any person."
Here, Williams was indicted for assaulting Opelika Police
Officer
Jernigan.
The
State
presented
evidence
that
two
Opelika police officers, Jernigan and Daniel, were attempting
to
investigate
a
report
of
17
suspicious
activity
in
the
CR-06-1451
neighborhood when Clint Flakes became aggressive, admitted
that there was a warrant pending against him, and told the
officers to "come get" him.
Officer Jernigan had entered the
house into which Clint Flakes had fled and was attempting to
arrest Flakes for disorderly conduct when both he and Officer
Daniel were hit.
Both men were knocked to the floor.
Officer
Jernigan suffered a broken nose in the fight.
Although
identify
the
officers
Jernigan
men
assaulted
who
and
Daniel
them,
they
were
unable
were
able
to
to
determine that there were four men –- other than themselves -involved
in
the
fight.
During
Jernigan's nose was broken.
the
course
of
the
fight,
Both officers were able to spray
mace containing a fluorescent substance at their attackers.
The police investigation showed that a car that had been
blocked in at the house by one of the patrol cars belonged to
Williams.
When Williams came to the police department for
questioning regarding the assault, he was led into a room that
was darkened and an ultraviolet light was turned on in the
room.
Under the ultraviolet light, a fluorescent pattern
consistent with a direct spray of Freeze Plus P mace was
visible
on
Williams's
skin.
From
18
this
evidence,
a
jury
CR-06-1451
reasonably could have concluded that Williams participated in
the fight with officers Jernigan and Daniel in an effort to
prevent them from carrying out their legal duty in arresting
Clint Flakes for disorderly conduct.
Williams contends that there is no proof that he actually
hit Officer Jernigan, and that even if he hit Officer Daniel,
that should be considered a separate offense from the offense
with which he was charged.
Williams offers no authority in
support of his assertion, which we find to be without merit.
It is well settled in Alabama that
"'[a] person is legally accountable for the behavior
of another constituting a criminal offense if, with
the intent to promote or assist the commission of
the offense:
"'....
"'(2) He aids or abets such other person in
committing the offense....'
"§ 13A-2-23, Ala. Code 1975.
"'The words "aid and abet" encompass all
assistance by acts, words of encouragement, or
support, or presence, actual or constructive, to
render assistance should it become necessary. Wright
[v. State, 494 So. 2d 936 (Ala. Crim. App. 1986)];
Sanders v. State, 423 So. 2d 348 (Ala. Crim. App.
1982). Actual participation in the crime need not be
proved by positive testimony to convict someone of
aiding and abetting. "The jury is to determine
19
CR-06-1451
whether the appellant's participation exists and the
extent of it from the conduct of the parties and all
the testimony presented." Walls v. State, 378 So.
2d 1186, 1191 (Ala. Crim. App. 1979), cert. denied,
Ex parte Walls, 378 So. 2d 1193 (Ala. 1980). Such
facts as the defendant's presence in connection with
his companionship, and his conduct at, before and
after the commission of the act, are potent
circumstances from which participation may be
inferred.'
"Henry v. State, 555 So. 2d 768, 769 (Ala. Crim.
App. 1989)."
Peraita v. State, 897 So. 2d 1161, 1210 (Ala. Crim. App.
2003).
Accordingly, even if Williams hit Officer Daniel and did
not
actually
hit
Officer
Jernigan,
the
jury
could
have
concluded that in participating in the attack on officers
Daniel
and
Jernigan,
he
was
legally
accountable
for
the
actions of whichever individual actually hit Officer Jernigan.
III.
Williams
Voluntary
contends
Sentencing
that
the
Standards
trial
of
the
court
ignored
Alabama
the
Sentencing
Reform Act of 2003, § 12-25-30 et seq., Ala. Code 1975 (the
"Sentencing Act"), and instead sentenced him pursuant to the
provisions of the Habitual Felony Offender Act, § 13A-5-9,
Ala. Code 1975.
20
CR-06-1451
The stated purpose of the Sentencing Act is "to protect
public safety by providing a fair, effective, and efficient
criminal justice system" through a variety of means, including
the use of "[v]oluntary sentencing standards used to guide
judicial decision makers in determining the most appropriate
sentence for convicted felony offenders."
§ 12-25-31(a)(1),
Ala. Code 1975.
However, the Sentencing Act specifically provides that
"[f]ailure to follow any or all of the provisions of this
section [titled "Use of voluntary sentencing standards"], or
failure to follow any or all of the provisions of this section
in the prescribed manner, shall not be reviewable on appeal or
the basis of any other post-conviction relief."
§ 12-25-
35(f), Ala. Code 1975 (emphasis added).
Accordingly, this argument is without merit.
For the reasons set forth above, the judgment of the
trial court is affirmed.
AFFIRMED.
McMillan and Wise, JJ., concur. Baschab, P.J., and Shaw,
J., concur in the result.
21
