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Ex parte Pines

Supreme Court of Alabama

April 3, 2015

Ex parte Marvin Earl Pines
v.
State of Alabama In re: Marvin Earl Pines

(Montgomery Circuit Court, CC-12-429; Court of Criminal Appeals, CR-12-0856)

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

PER CURIAM

WRIT QUASHED. NO OPINION.

Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ., concur.

Moore, C.J., and Murdock and Main, JJ., dissent.

MOORE, Chief Justice (dissenting).

Marvin Earl Pines was convicted of trafficking in cannabis, a violation of § 13A-12-231(1)(a), Ala. Code 1975, and was sentenced as a habitual offender to life imprisonment. The Court of Criminal Appeals affirmed Pines's conviction and sentence, without an opinion. Pines v. State (No. CR-12-0856, March 21, 2014), ___So. 3d___ (Ala.Crim.App.2014) (table). This Court initially granted certiorari review; it now quashes the writ. Because I believe Pines was entitled to a judgment of acquittal on the ground of entrapment, I respectfully dissent.

On the morning of September 16, 2011, Larry Wells, a confidential informant working with the Montgomery Police Department, contacted Cpl. M.K. Webster, an officer with the Montgomery Police Department, informing Cpl. Webster that Pines had agreed to sell Wells three pounds of marijuana. Pines and Wells ultimately arranged for the exchange to take place in the parking lot of a Winn-Dixie grocery store on the Atlanta Highway in Montgomery. Once Pines arrived, the police, who were watching from a distance, moved in and arrested Pines. The police found approximately three pounds of marijuana in Pines's vehicle.

Pines was indicted for trafficking in cannabis, a violation of § 13A-12-231(1)(a), Ala. Code 1975. At trial, Cpl. Webster testified that he had had sufficient evidence to charge Wells with distribution of marijuana in an earlier case but that Wells had agreed to serve as a confidential informant in lieu of prosecution. Neither the State nor Pines called Wells as a witness. At the close of the State's case-in-chief, Pines moved for a judgment of acquittal on the ground of entrapment, which motion was denied.

Pines testified in his own defense. According to Pines, Wells had telephoned him four or five times on the evening of September 15, 2011, asking Pines to sell him three pounds of marijuana. Pines testified that he had refused each time, explaining that he could not find three pounds of marijuana. According to Pines, Wells telephoned him again at approximately 9:30 a.m. on September 16, 2011, asking Pines to sell him three pounds of marijuana, and Pines again refused. Pines testified that Wells telephoned him yet again at around 11:00 a.m. on September 16, 2011, and that, at that point, Pines finally agreed to sell him the marijuana he was seeking. Pines testified that his job paid only between $250 and $300 per week and that the thought of the extra money ultimately led him to agree to sell Wells the marijuana. Pines further testified that, after agreeing to sell Wells the marijuana, he acquired three pounds of marijuana from a friend of his, who was a drug dealer, and then went to meet Wells. Pines admitted that he had prior drug-related convictions, but he testified that the maximum amount of marijuana he had sold previously was one-half of a pound.

At the close of his case-in-chief, Pines moved again for a judgment of acquittal on the ground of entrapment. The trial court again denied Pines's motion, but it instructed the jury on the defense of entrapment. The jury returned a guilty verdict. Pines was sentenced, as a habitual offender, to life imprisonment.[1] Pines was also ordered to pay a $25, 000 fine, court costs, a $100 fine to the Department of Forensic Sciences, and a $50 crime-victims-compensation assessment.

On appeal, Pines's court-appointed trial counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967).[2] As part of the Anders procedure, the Court of Criminal Appeals issued an order, offering Pines the opportunity to present pro se any issues he wanted that court to review, but he did not reply. After examining the record and holding that there was "no basis for reversing the judgment of the trial court, " the Court of Criminal Appeals affirmed Pines's conviction and sentence in an unpublished memorandum. Pines v. State (No. CR-12-0856, March 21, 2014), ___So. 3d___ (Ala.Crim.App.2014) (table). On April 2, 2014, the Court of Criminal Appeals appointed new counsel to represent Pines on rehearing. Pines filed his application for rehearing on April 21, 2014, which the Court of Criminal Appeals overruled on April 24, 2014. Pines then petitioned this Court for a writ of certiorari, which this Court granted on June 16, 2014.

This Court reviews a trial court's order denying a motion for a judgment of acquittal as follows:

"'Appellate courts are limited in reviewing a trial court's denial of a motion for judgment of acquittal grounded on insufficiency.' McFarland v. State, 581 So.2d 1249, 1253 (Ala.Crim.App.1991). 'The standard of review in determining sufficiency of evidence is whether evidence existed at the time of [the defendant's] motion for acquittal was made, from which the jury could by fair inference find the [defendant] guilty.' Linzy v. State, 455 So.2d 260, 261 (Ala.Crim.App.1984) (citing Stewart v. State, 350 So.2d 764 (Ala.Crim.App.1977), and Hayes v. State, 395 So.2d 127 (Ala. Crim. App.), writ denied, ...

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