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01/13/95 MICHAEL ALLEN THOMAS v. STATE

January 13, 1995

MICHAEL ALLEN THOMAS
v.
STATE



Appeal from Baldwin Circuit Court. (CC-93-898). James Reid, TRIAL JUDGE.

Rehearing Denied May 26, 1995. Certiorari Denied August 4, 1995. Released for Publication January 23, 1996.

Montiel, Judge. All the Judges concur.

The opinion of the court was delivered by: Montiel

MONTIEL, JUDGE

The appellant, Michael Allen Thomas, was indicted for unlawful distribution of marijuana in violation of § 13A-12-211, Code of Alabama 1975. A jury found Thomas guilty as charged in the indictment. The trial court sentenced Thomas to 10 years in prison; the sentence included a five-year enhancement for selling a controlled substance within three miles of a school, as mandated by § 13A-12-250, Code of Alabama 1975.

The evidence adduced at trial tended to show the following. On March 23, 1993, Deputy Brad Burks of the Baldwin County Sheriff's Department and Linda Clemmons, an agent of the Alabama Alcoholic Beverage Control Board, were conducting an undercover investigation in Gulf Shores, Alabama. The officers were working with Hugh Hartley, a confidential informant. While the three were at the Barefoot Bar in Gulf Shores, Hartley asked Thomas if he had any marijuana. Thomas told him he had an ounce, and then he, Hartley and the officers left the bar and went to a residence in Gulf Shores where Thomas sold Deputy Burks about a quarter of an ounce of marijuana for $120. At Burks's request, Thomas also provided rolling papers.

Kelly Cannon of the Alabama Department of Forensic Sciences determined that the substance that Thomas sold to Burks was marijuana.

I

Thomas claims that the trial court erred in denying his motion to replace two of the panels available for jury selection in his case because, he says, members of those panels had served on a jury of a prior trial tried by the same prosecutor and involving what he says were identical facts and the same witnesses as his case.

"'The general rule is that "absent some evidence of actual partiality, a juror is not disqualified merely because he previously sat in a similar case arising out of a separate and distinct set of circumstances even though the offenses charged in the cases are similar and some of the same prosecution witnesses testify in each case." It is not a ground for challenge for cause in a drug prosecution that a juror had served on the previous day on a case involving a similar charge in which the same undercover officer had testified as a witness for the State.'"

Tolbert v. State, 552 So. 2d 164, 166 (Ala. Crim. App. 1989), (citations omitted).

The record in this case shows that defense counsel challenged for cause one juror who indicated actual bias as a result of having sat on the previous jury. The trial court granted the challenge. Thomas did not challenge any other jurors from the previous jury. He failed to establish any bias or partiality on the part of those jurors. Thus, the trial court did not err in denying Thomas's motion to provide replacement jury panels, nor did it err in denying Thomas's motion for a mistrial based on the same grounds.

II

Thomas argues that the trial court erred in refusing to charge the jury on the lesser included offenses of possession of marijuana in the first degree, possession of marijuana in the ...


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