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11/10/94 WILLIAM HOWARD MARTY v. STATE

November 10, 1994

WILLIAM HOWARD MARTY
v.
STATE



Appeal from Jefferson Circuit Court. CC-91-1497. James Garrett, TRIAL JUDGE.

Rule 39(k) Motion Denied December 29, 1994. Rehearing Denied December 29, 1994. Certiorari Denied February 24, 1995. Released for Publication June 25, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

William Howard Marty, the appellant, was convicted of conspiracy to traffic in cannabis, *fn1 was sentenced to 16 years' imprisonment, and was fined $25,000. On this direct appeal of that conviction, he raises three issues.

The State's evidence established the following: The appellant agreed with Johnny Spain, a confidential informant for the Narcotics Division of the Alcoholic Beverage Control Board, to buy marihuana for resale. In a series of meetings during which Spain was "wired," the appellant negotiated to buy from Spain 10 pounds of marihuana for $1000 per pound. Posing as Spain's suppliers, ABC Board narcotics agents brought 10 one-pound bags of marihuana to a Birmingham motel for a "reverse sting" operation. Tendering one of the bags for inspection by the appellant and his codefendants, the agents stated that they would provide the rest of the marihuana when they received the agreed upon cash purchase price. The appellant and his codefendants were arrested when one of the codefendants presented the money for the drugs.

I

The appellant maintains that the State did not establish a prima facie case of conspiracy to traffic in cannabis because it did not prove that the plant material he allegedly agreed to buy was marihuana and that it weighed more than 2.2 pounds. See Ala. Code 1975, § 13A-12-231(1)(a) ("any person who knowingly sells, manufactures, delivers or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as 'trafficking in cannabis'"). At trial, the forensic toxicologist testified that she analyzed one bag containing approximately one pound of green plant material and determined that it was marihuana.

Following the appellant's motion for a judgment of acquittal on the ground that the State had failed to present evidence meeting the threshold 2.2 pound requirement for trafficking, the circuit court made the following comments:

"THE COURT: Well, one thing that bothered me, and then I thought about it was is there a possibility or impossibility of performance. If there was an impossibility of performance, I was wondering if you could have a conspiracy to commit a certain crime. However, I know that there have been recent cases where there has been a conspiracy to commit murder whereby the main actor was conspiring with unknown undercover agents to have someone murdered, and, obviously, since she was conspiring with law enforcement agents, the act would have been an impossibility because they had no intention to follow out the act. I don't know if impossibility of performance due to an insufficient amount for it to be trafficking would be a defense.

". . . .

"[Defense counsel's] argument is very persuasive, and I would say this, that the best course of conduct for [the State] to pursue from this point forward, if they wish to continue these type cases, at least submit sufficient samples to the department of forensic sciences so that a prima facie amount in excess of 2.2 pounds is proven by scientific testimony. I think that is the better choice. Whether that is absolutely required, I think that certainly removes that problem, if it, in fact, is a problem." R. 1019-22.

The appellant was charged with conspiracy to traffic in cannabis. The essence of a conspiracy is the agreement to engage in the prohibited conduct.

"'The elements of conspiracy are: first, the specific intent that a crime be performed; second, an agreement with another person to engage in or cause that crime to be performed, and third, the commission of an overt act by one of the conspirators in furtherance of the conspiracy.'"

Zumbado v. State, 615 So.2d 1223, 1242 (Ala.Cr.App. 1993) (quoting Greer v. State, 563 So.2d 39, 40 (Ala.Cr.App. 1990)).

For conspiracy, there is "no[] requirement that the criminal offense agreed to be actually completed." Calhoun v. State, 460 So.2d 268, 272 (Ala.Cr.App. 1984). Therefore, in order to establish a prima facie case of conspiracy to traffic in cannabis, the State was not required to present any expert testimony from the forensic toxicologist, either that the green plant material was actually marihuana or that it weighed more than 2.2 pounds. Compare Zumbado v. State, 615 So.2d at 1244 (proof that intended murder victim was alive would have little bearing on charge of conspiracy to murder since victim's death was not an element of conspiracy to murder).

Impossibility of performance is not a defense to conspiracy. 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.5(b) (1986).

"The conspiracy cases have usually . . . [held] that impossibility of any kind is not a defense. It has been held, for example: that there may be a conspiracy to commit abortion even when, unknown to the conspirators, the woman was not pregnant; that there may be a conspiracy to commit rape on a woman believed to be unconscious although she was in fact dead; that there may be a conspiracy to defraud the United States notwithstanding the fact that the fraud was impossible of commission because the government was aware of the scheme or because the forged bonds were not witnessed by the proper official; that there may be a conspiracy to smuggle liquor in violation of the customs law even though, unknown to the conspirators, the liquor was of domestic origin; and that there may be a conspiracy to obstruct Justice even if the scheme of having certain individuals called as jurors could not have been accomplished by the conspirators."

Id. at 92-93 (footnotes omitted).

The prosecution presented a prima facie case of conspiracy to traffic in cannabis by introducing evidence that the appellant had the specific intent to buy in excess of 2.2 pounds of marihuana, agreed with Spain to make the purchase, and performed specific overt acts in furtherance of that agreement. See Beavers v. State, 627 So.2d 1021 (Ala.Cr.App. 1991), reversed on another ground, 627 So. 2d 1024 (Ala. 1992). The appellant's motion for a judgment of acquittal was correctly overruled.

II

The appellant claims that the State struck six black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala. 1987).

Although the record is not clear, it appears that either 41% or 42% or the original venire was black. R. 122, 131. The State used 13 of its 24 peremptory strikes to eliminate black prospective jurors. R. 128. The defense used 22 of its 24 peremptory challenges to remove white veniremembers. R. 123.

Both the State and the defense made Batson motions and each explained its reasons for its peremptory strikes. At the end of the explanation process, which consumed the better part of one day, the circuit court found that the defense had not given race-neutral reasons for its strikes of 6 white veniremembers, and that the State had not provided race-neutral explanations for its strikes of 3 black veniremembers.

The court ordered that those nine jurors be returned to the venire. The parties then conducted further voir dire of the 9 prospective jurors and finished striking the jury. The defense eliminated 4 of the 6 white jurors it had originally struck, plus 2 black jurors. The State struck 3 new veniremembers, all of whom were white. We are unable to determine the racial composition of the trial jury.

The record on appeal, as originally filed, did not contain a venire list or a list of those who actually served on the jury. This court requested and obtained both lists from the court reporter. Those lists, however, do not indicate the race of the veniremembers or jurors. We have been able to ascertain the race of some of the ...


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