Roderick Earl Jackson v. State of Alabama

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REL: 12/17/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2010-2011 CR-09-1580 Roderick E a r l Jackson v. S t a t e o f Alabama Appeal from J e f f e r s o n C i r c u i t C o u r t ( C C - 0 9 - 8 8 8 ; CC-09-889; CC-09-890; CC-09-891) WINDOM, Judge. Roderick Earl count of t r a f f i c k i n g violation Jackson appeals i n cocaine o f § 13A-12-231(2) count of t r a f f i c k i n g while h i s convictions possessing a firearm, a a n d ( 1 3 ) , A l a . Code i n marijuana while f o r one possessing 1 9 7 5 , one a firearm, CR-09-1580 a violation count of unlawful violation failure Code of § possession 13A-12-212, to a f f i x 1975, permit, was o f § 13A-12-231(1) and one a violation as 2) count controlled A l a . Code 1975, one substance, three of carrying a pistol o f § 1 3 A - 1 1 - 7 3 , A l a . Code a felony convictions and a 1975, counts a of a t a x stamp, v i o l a t i o n s of § 40-17A-4, A l a . and sentenced of ( 1 3 ) , A l a . Code habitual felony a s f o l l o w s : 1) l i f e offender without 1975. a Jackson with 2 i n prison plus prior 5 years a $50,000 f i n e f o r the t r a f f i c k i n g - i n - c o c a i n e c o n v i c t i o n ; life i n prison plus 5 years and a $25,000 fine f o r the t r a f f i c k i n g - i n - m a r i j u a n a c o n v i c t i o n ; 3) 1 0 y e a r s i n p r i s o n a n d a $2,000 Assessment substance fee imposed Act f o r the the i n prison c o n v i c t i o n ; and 5) court Lastly, the c i r c u i t $100 felony to ordered the conviction. that court Crime Demand these sentences ordered Jackson Victims (C. 1 4 - 1 8 , R. 2 f o r each 12 m o n t h s the carrying-a-pistol-without-a-permit circuit and to Reduction unlawful-possession-of-a-controlled- c o n v i c t i o n ; 4) 1 0 y e a r s to-affix-a-tax-stamp for pursuant i n prison conviction. run The concurrently. to pay court Compensation Fund 288-90.) failure- for costs each CR-09-1580 I. On erred appeal, Jackson i n denying from h i s motion h i s person argues that search first and Officer h i s person from argues that to suppress his car. Derrick Bouyer the c i r c u i t court the evidence seized Specifically, d i d n o t have or h i s c a r and t h a t Jackson a warrant the State failed to to e s t a b l i s h that the searches f a l l w i t h i n a recognized exception to the Fourth Amendment's warrant requirement. This Court disagrees. " T h i s C o u r t r e v i e w s de n o v o a c i r c u i t a motion to dispute." suppress S t a t e v. White, 2009) (quoting State Crim. App. instant evidence 2004) case, v. issue before t h i s Court the law t o those facts. Skaggs, facts are not i n So. 2d 1 8 0 , 181 ( A l a . omitted)). I n the are uncontested; therefore, i s the c i r c u i t Consequently, i n favor of the c i r c u i t the court's decision It 903 citations presumption circuit the 28 S o . 3 d 8 2 7 , 8 2 9 ( A l a . C r i m . A p p . (internal the facts when c o u r t ' s d e c i s i o n on the only court's application of this Court affords no c o u r t ' s r u l i n g and reviews de n o v o . i s w e l l s e t t l e d t h a t w a r r a n t l e s s searches and s e i z u r e s are p e r se u n r e a s o n a b l e u n d e r t h e F o u r t h Amendment u n l e s s t h e 3 CR-09-1580 State establishes recognized (Ala. that the search exception. 1985). or seizure Ex p a r t e H i l l e y , 484 Exceptions to the warrant falls So. within 2d 485, requirement a 488 include: 1) o b j e c t s i n p l a i n v i e w ; 2) c o n s e n s u a l s e a r c h e s ; 3) a s e a r c h incident to a situations; lawful 5) circumstances; pursuant Tucker, probable and 6) an v. Ohio, exception," the warrant which allows automobile based At witness 527 U.S. pursuit coupled U.S. with 1 (1968). ( A l a . 1995). Another law ( A l a .Crim. i s the enforcement 2006) to was playing 987 (citing Jackson's driver's Bouyer h i s d r i v e r ' s Road and h i s radio too 8th license, v. loudly. As J a c k s o n was was the only he stopped West because Officer Avenue side of Jackson's license. Maryland (1999)). According to O f f i c e r up t o t h e p a s s e n g e r recognized an Bouyer, Jackson parte search to t e s t i f y . Arkadelphia Ex frisk S t a t e v. B l a c k , alone. App. exigent "automobile Bouyer at emergency d e t e n t i o n and requirement 465, 466-67 or the suppression hearing, O f f i c e r Jackson walked 392 on p r o b a b l e c a u s e 2 d 1 1 7 7 , 1180 Dyson, hot investigatory 667 S o . 2 d 1 3 3 9 , 1 3 4 3 to 4) cause Terry to exception So. arrest; Bouyer c a r and asked f o r handing Officer O f f i c e r Bouyer " s m e l l e d a s t r o n g 4 CR-09-1580 odor the of marijuana vehicle." around there and a l s o (R. 10, to the driver's was about. anything 123.) side [ a n opened] beer Officer Bouyer then o f t h e c a r and asked i n the car that the o f f i c e r inside walked Jackson i f should know J a c k s o n d e n i e d t h a t t h e r e was a n y t h i n g i n t h e c a r . t h a t p o i n t , O f f i c e r Bouyer s o he c o u l d During search observed conduct Jackson's Jackson's asked Jackson to get out of the c a r a patdown the patdown, search. Officer pockets, pockets, At Bouyer and J a c k s o n Officer consented. found I n one o f money, marijuana, Bouyer a r r e s t e d J a c k s o n and p l a c e d J a c k s o n i n h i s p a t r o l c a r . During then conducted the search of the i n t e r i o r found a handgun u n d e r n e a t h the a trunk, O f f i c e r Bouyer At that to cocaine, Bouyer cocaine. f o r consent powder Officer and c r a c k Bouyer asked search of point, Jackson's c a r . of the c a r , O f f i c e r the driver's seat. Officer Bouyer While searching found a l a r g e bag c o n t a i n i n g several bags o f m a r i j u a n a , another bag c o n t a i n i n g m a r i j u a n a and p i l l s , a footlocker containing a "bag f u l l o f money" (R. 1 3 ) , a n d more c o c a i n e . Based on these uncontested the circuit court c o r r e c t l y denied Jackson's motion to suppress. Officer Bouyer 5 facts, CR-09-1580 initially stopped Jackson violation of a c i t y o r d i n a n c e . to Jackson's saw an open probable See beer arrest v. State, 772 is well emanating p r o b a b l e cause 2d At to ("[I]t marijuana So. can. 587, settled from an 592 from [ a ] v e h i c l e n.4 of 1990) burned stopped arrest stop; (same); a l l of of marijuana Officer search 1200, Bouyer had Jackson's car. App. the automobile and (Ala. Crim. 1202 that next odor of i s enough to burned provide "the v. App. odor ... 2003) of (holding 855 that 'burnt marijuana smoke' e s t a b l i s h e d probable cause" State, So. the ordering police officers coming have So. 254 2d (Ala. the marijuana 815 251, ( h o l d i n g t h a t "where p o l i c e o f f i c e r s s m e l l burning State, 2d to 582 or Adams v . 566 an 578, automobile, properly 1 of t h e v e h i c l e ) ; Key ( A l a . 2001) odor and ... (Ala. Crim. emanating App. too l o u d l y i n t o s e a r c h t h e v e h i c l e . " ) ; S t a t e v. Gargus, detection Crim. 2d odor point, Jackson officer's search strong that So. his radio W h i l e O f f i c e r B o u y e r was 1 smelled a cause Blake 2000) c a r , he for playing from probable a legally cause automobile's occupants"). Further, Jackson of Officer out the car, J a c k s o n does not c o n t e s t the l e g a l i t y therefore, t h i s Court w i l l not address 6 to after Bouyer of the initial that issue. CR-09-1580 obtained Jackson's Officer [Ms. Bouyer found C R - 0 6 - 2 2 4 6, Crim. App. t o s e a r c h J a c k s o n ' s p o c k e t s , where drugs and 27 , 2008] June 2008) recognized smelling consent (holding exception to of m a r i j u a n a to 582 Jackson's to Officer c a r and pockets, motion the suppress searches. any pursuant 2d at is to 1202; After the car Jackson's Adams, and consent, to search 815 a So. the 2d at n.4. Because his So. (Ala. search coming from i n J a c k s o n ' s p o c k e t , he h a d p r o b a b l e c a u s e 772 State, requirement). drugs Blake, v. , Officer See found, 3d consent warrant Mills after car. Bouyer See So. that the the s t r o n g odor money. Bouyer had because court the evidence Therefore, this issue cause consented Jackson circuit probable to the search denied Jackson's correctly seized as does not a to result entitle search of of those Jackson to relief. II. Jackson next argues that the circuit court abused i t s d i s c r e t i o n by a l l o w i n g t h e S t a t e t o impeach him w i t h h i s p r i o r felony convictions marijuana and for first-degree unlawful possession u n l a w f u l p o s s e s s i o n of a c o n t r o l l e d 7 of substance. CR-09-1580 Specifically, Jackson argues erroneously determined that convictions outweighed the 609(a)(1)(B), Ala. circuit erred court R. convictions. Neither as Jackson failing regarding the probative prejudice Evid. in instruction the that its to circuit value required also give the prior under Rule argues the jury consideration of these of of issues entitles court that a the limiting his prior Jackson to any relief. To abused the to Rule his issue motion and for unlawful i s not by argues allowing 609(a)(1)(B), convictions marijuana this Jackson i t s discretion pursuant felony extent that the the State A l a . R. circuit to possession properly i n l i m i n e , the before circuit of impeach Evid., with first-degree unlawful court his prior Court. In of substance, ruling stated: " U n d e r [ R u l e ] 6 0 9 , [ A l a . R. E v i d . , ] I'm g o i n g t o f i n d t h a t the p r o b a t i v e v a l u e of a d m i t t i n g these outweighs the p r e j u d i c i a l v a l u e . I t h i n k i t c o u l d a l s o come i n as 4 0 4 ( b ) [ , A l a . R. E v i d . , ] t o p r o v e the d e f e n d a n t ' s knowledge of the p r e s e n c e of the d r u g s , s i n c e t h e r e ' s been t e s t i m o n y from the p o l i c e o f f i c e r t h e r e was an o d o r o f m a r i j u a n a i n the c a r , and t h a t a c c o r d i n g t o t h e s e p r i o r c o n v i c t i o n s t h e r e was a p r i o r p o s s e s s i o n o f m a r i j u a n a , and t h e other was a p o s s e s s i o n o f a c o n t r o l l e d s u b s t a n c e . So I'm g o i n g to deny your m o t i o n . " 8 him, possession a controlled this court on CR-09-1580 (R. 218 (emphasis added).) In h i s i n i t i a l the circuit brief, court's convictions were however, J a c k s o n does not alternative admissible Evid. Because Jackson circuit court's holdings, See Kellis Civ. v. App. Estate 2007) challenge the a and waiver pursuant has of failed he has that court's requires to to that Rule 983 an challenge So. 2d we the decision); A n d e r s e n v. P r o f e s s i o n a l Escrow I d a h o 743, 118 78 failed P.3d to challenge grounds for 75, (2005) Ala. of 408, circuit Servs., court's Inc., ("Because the A n d e r s e n s summary judgment against them, a f f i r m e d . " ) ; B i a l e s v. 315 166, S.E.2d 484 constitutes review App. challenge that holding 113, 609 482, an abandonment of on i n which there (1993) alternative of S.E.2d situations to constitutes c a s e m u s t be to (Ala. failure of t h e i r failure issue. 141 have on a p p e a l t h e d i s t r i c t c o u r t ' s a l t e r n a t i v e granting 432 the 413 dismissal S.C. R. of t h i s appellant's affirm prior one alternative holding that the 404(b), waived review Schnatz, (holding circuit holding challenge the issue appeal); 58, 60 i s one 9 (holding ground and (2005) Young, that the a holding precludes further Johnson for the v. Com., ("holding 45 Va. that in o r more a l t e r n a t i v e h o l d i n g s CR-09-1580 on an issue, holdings respect of to the Chicago, an holdings in 547 results the in C o r o n a d o v. (10th "failure holding"); C i r . 2008) that t o a d d r e s s one claim any on that F.3d that the the United that (noting the that this 922, Court w i l l not Cir. F.3d 791, district failure to with (7th claim 528 the (quoting 537 States, the 932 2d Dist., of error 644-45 appellant's confront v. of issue.'") 625, Sch. S m i t h v. So. City holdings Pub. (holding with ("'[I]n court 745 Cir. the 2008) a l t e r n a t i v e h o l d i n g of d i s t r i c t State, error of 245 Utah of of i s s u e " ) ; Maher v. (7th decision to claim one failure waiver (noting address o r more a l t e r n a t i v e i s one Valleyview to any 821 Hatchett, ( 7 t h C i r . 2008) alternative 724 v. his a court's 2001); to 817, have s t a t e d t h a t States due of d e c i s i o n on i n which there to failure waiver F.3d United 797 a court's i s s u e , we respect appellant's results situations on the failed court's F.3d 712, challenge constitutes waiver); n.2 ( A l a . C r i m . App. address issues not cf. 1999) raised by appellant). Moreover, Court, notes even i t does not that "'[t]he i f this entitle issue Jackson admission or 10 was to properly any relief. exclusion of before this This Court evidence is a CR-09-1580 matter within Hinkle v. , So. 1215 is the the State, sound [Ms. discretion CR-08-1778, ( A l a . C r i m . App. 2d 1148, 1191 (Ala. Crim. (Ala. 2001)). generally trial left cannot finding This say a the on of 771 So. abused of the c o n v i c t i o n s o u t w e i g h e d any Ala. t h a t an Evid. ("[E]vidence o f s u c h a c r i m e s h a l l be the probative prejudicial not met abused his its convictions value effect burden of admitting to the of discretion t o be admitted See i f the this will of and not abuse the Rule 1103 (Ala. record and by evidence in prior 609(a)(1)(B), been convicted that outweighs i t s Therefore, the be of court determines evidence 2d evidence i t s discretion that allowing So. court, 2d 1093, establishing 11 808 808 trial a c c u s e d has accused."). admitted. State, v. 3d evidence of the prejudice. R. the reviewed court value So. aff'd, showing thoroughly t h a t the p r o b a t i v e court.'" 2010] that question clear circuit trial of a d m i s s i b i l i t y of Ex p a r t e L o g g i n s , has 28, 2000), discretion upon Court that App. question the May the (quoting Taylor determination except discretion...." 2000). "The to court's reversed 2010) of Jackson has circuit court of prior his CR-09-1580 Finally, court to the erroneously extent failed Jackson to argues instruct purpose f o r the admission of h i s p r i o r is not properly before requested court's in relevant oral part, ... retires or 2006) court's for this entitle him Based to on convictions. may assign provides, as error the grounds of the 2d 1275, not Court). instruction, review. challenge Because he did not foregoing, which Crim. the this was issue not failed object preserve App. circuit thus Jackson to also to this to the issue does not relief. the to and failed Therefore, any (Ala. preserved i n s t r u c t i o n and jury o b j e c t i o n . " See 1282 the improper to this Court's C r i m . P., circuit matter i n s t r u c t i o n was circuit the i t s v e r d i c t , s t a t i n g the appellant's limiting to the the a objected neither before (holding that request Jackson issue thereto and before trial, objects So. properly limited incomplete or otherwise 953 jury the A l a . R. State, court's v. ... circuit convictions, this At party the p a r t y consider objects Shouldis "[n]o g i v i n g o f an to she R u l e 21.3, that charge, unless Court. i n s t r u c t i o n nor instructions. court's he a limiting this the j u r y on the that this Court affirms T h i s C o u r t must, however, remand t h i s 12 Jackson's cause. It CR-09-1580 does not appear from the r e c o r d t h a t the t h e a d d i t i o n a l m a n d a t o r y $25,000 f i n e of trafficking i n cocaine while his conviction for trafficking a firearm. § ("Notwithstanding any p e r s o n who of any has possession imprisonment of addition to, provided, and and not a the additional sentence of five in ( A l a . C r i m . App. fine provided in 2005) the See or Brown v. State, which s h a l l thousand the dollars person 812 ( h o l d i n g t h a t "the (holding that the mandatory enhancements So. 2d Jackson's 957, circuit court's contained in § 13 961 So. 2d Because contained sentences to a $25,000 (Ala. Crim. failure in five-year the State, be a otherwise impose the mandatory f i n e 939 any p u n i s h e d by give v. 1975, commission punishment Carter 2001) the suspend for contrary, be twenty-five 1 3 A - 1 2 - 2 3 1 ( 1 3 ) , A l a . Code 1975, illegal. Code the years or possessing f o r i n § 13A-12-231(13) i s mandatory"). c i r c u i t court d i d not § of, person 395 the calendar the 391, to section shall not sentence."). while Ala. law shall of firearm firearm during lieu probationary n.3 a of court a i n marijuana this fine ($25,000); possessing p r o v i s i o n of imposed for Jackson's c o n v i c t i o n 13A-12-231(13), a c t p r o s c r i b e d by term of c i r c u i t court apply 13A-12-231(13) are App. the renders CR-09-1580 the appellant's remands t h i s to impose conviction firearm sentence illegal). Accordingly, cause t o the c i r c u i t court the mandatory $25,000 for trafficking while possessing filed with a firearm the Court enhancement i n cocaine and t o h i s c o n v i c t i o n 28 days Court that court to while in Due r e t u r n of Jackson's possessing for trafficking conviction. within and d i r e c t s this the date marijuana shall of be this opinion. AFFIRMED Wise, I N PART AND REMANDED WITH P . J . , and Welch, Kellum, 14 DIRECTIONS. and Main, a J J . , concur.

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