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Harris v. State

Alabama Court of Criminal Appeals

August 10, 2018

Jeffrey Jerone Harris
v.
State of Alabama

          Appeal from Escambia Circuit Court (CC-16-460)

          JOINER, Judge.

         Jeffrey Jerone Harris appeals his convictions for attempt to commit a controlled-substance crime (distribution of cocaine), see §§§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; attempt to commit a controlled-substance crime (distribution of marijuana), see §§§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; unlawful possession of a controlled substance (cocaine), see § 13A-12-212(a)(1), Ala. Code 1975; first-degree unlawful possession of marijuana, see § 13A-12-213, Ala. Code 1975; and possession with the intent to deliver a cellular telephone to an inmate, see § 14-11-50(a), Ala. Code 1975. Harris was sentenced to 130 months' imprisonment on each conviction. Those sentences were to run concurrently. Harris was also ordered to pay all mandatory assessments and costs.

         Facts and Procedural History

         The evidence adduced at trial tended to establish the following. On the afternoon of May 9, 2016, Officer Michael Banks, an investigative officer with the Alabama Department of Corrections, left work at Holman Prison and saw a black vehicle pulled over on the shoulder of the road. After he drove several yards past the vehicle, Officer Banks saw a male, who was later identified as Adrian Pritchett, get out of the passenger side of the vehicle with a package in his hand. Officer Banks watched as Pritchett walked into the wooded area near the prison and then returned to the vehicle without the package. Officer Banks was aware of problems with people introducing contraband into the prison facility by leaving it in the woods for inmates to pick up later so he decided to detain Pritchett. At that time, the driver of the vehicle, who was later identified as Harris, get out of the vehicle and walked toward Officer Banks. Officer Banks directed Harris to get back into the vehicle, which he did. As Officer Banks detained Pritchett, Harris left the scene. Officer Banks then notified his supervisor what had just occurred and requested backup.

         Correctional officers from Fountain Prison, which is close to Holman Prison, responded to the request for backup. They located Harris and his vehicle just as it began to turn onto the main highway leading from Holman Prison. At that point, they detained Harris. No testimony was presented that drugs or other contraband was found either on Harris or in the vehicle he had been driving.

         Agent Deputy W.D. Favor with the Alabama Department of Corrections Investigation and Intelligence Division testified that a cursory search near where Pritchett had gone into the woods was conducted. As a result of that search, law- enforcement officers located a blue "birthday" bag containing two "football-size[d]" packages "wrapped in black tape." (R. 239-41.) It was later determined that that package contained 24.07 grams of marijuana, 5.44 grams of cocaine, "Newport" brand cigarettes, several cellular telephones and chargers, and super glue.[1]

         On July 29, 2016, Harris was indicted by the Escambia County grand jury for attempt to commit a controlled-substance crime (distribution of cocaine), see §§§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; attempt to commit a controlled-substance crime (distribution of marijuana), see §§§ 13A-4-2, -12-203, and -12-211, Ala. Code 1975; unlawful possession of a controlled substance (cocaine), see § 13A-12-212(a)(1), Ala. Code 1975; first-degree unlawful possession of marijuana, see § 13A-12-213, Ala. Code 1975; and intent to deliver a cellular telephone to an inmate, see § 14-11-50(a), Ala. Code 1975. At a pretrial conference on September 18, 2017, Harris moved to dismiss the indictment on the ground that the two counts of possession were lesser-included offenses of the two counts of attempted distribution. Following a hearing, the circuit court denied that motion.

         On September 20, 2017, a jury found Harris guilty of all counts as charged in the indictment. On November 1, 2017, Harris was sentenced as indicated above. Thereafter, he filed a timely notice of appeal.

         Discussion

         On appeal, Harris argues that his convictions for possession and attempted distribution arose from one incident and, thus, his possession convictions are lesser-included offenses of his attempted-distribution convictions and violate the prohibition against double jeopardy. The State agrees with Harris and contends that he is entitled to have his convictions for unlawful possession of cocaine and unlawful possession of marijuana vacated. For the reasons provided herein, we agree.

         This Court has previously used the two-pronged test announced by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299 (1932), to determine whether two offenses are the same for double-jeopardy purposes:

"In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court held that 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.' The Blockburger test is a two-pronged test. First, 'the threshold inquiry under Blockburger is whether the alleged statutory violations arise from "the same act or transaction."' State v. Watkins, 362 S.W.3d 530, 545 (Tenn. 2012). See also State v. Armendariz, 140 N.M. 182, 188, 141 P.3d 526, 532 (2006) ('The first part of the test requires the determination of whether the conduct underlying the offenses is unitary.'); R.L.G., Jr. v. State, 712 So.2d 348, 359 (Ala.Crim.App.1997) ('Before the double jeopardy prohibition is triggered ... it must appear ... that the crimes arose out of the same act or transaction.' (citations omitted)), aff'd, 712 So.2d 372 (Ala. 1998); and State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054, 1058 (1985) ('An analysis of the Blockburger test involves a threshold determination of whether the offenses arose out of the "same act or transaction," and a substantive analysis of whether they contain distinct elements.'). The Double Jeopardy Clause does not operate to prohibit prosecution, conviction, and punishment in a single trial for discrete acts of the same offense. See Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). Thus, whether a defendant's conduct constitutes the same act or transaction 'does not determine whether there is a double jeopardy violation; rather it determines if there could be a violation.' State v. Schoonover, 281 Kan. 453, 467, 133 P.3d 48, 62 (2006).
"Second, if the offenses did arise from the same act or transaction, then it must be determined whether each offense requires proof of an additional fact which the other does not, i.e., whether the two offenses are the 'same' for double-jeopardy purposes. '[A]pplication of the test focuses on the statutory elements of the offense,' Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), and is a rule of statutory construction based on the assumption that a legislature 'ordinarily does not intend to punish the same offense under two different statutes.' Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). See also Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) ('[W]e presume that "where two statutory provisions proscribe the 'same offense, '" a legislature does not intend to impose two punishments for that offense.') (quoting Whalen, 445 U.S. at 692). It is well settled 'that a lesser included and a greater offense are the same under Blockburger.' Brown v. Ohio, 432 U.S. 161, 166 n. 6, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). See also Heard, supra, and Lewis v. State, 57 So.3d 807 (Ala.Crim.App.2009)."

Williams v. State, 104 So.3d 254, 256-57 (Ala.Crim.App.2012). The record indicates that Harris's multicount indictment ...


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